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A  MANUAL 
FOR  COURTS-MARTIAL 

COURTS  OF  iNQumy 

AND  OF  OTHER  PROCEDURE  UNDER 
MILITARY  LAW 


REVISED    IN    THE    JUDGE    ADVOCATE    GENERAL'S    OFFICE 
AND  PUBLISHED  BY  AUTHORITY  OF  THE  SECRETARY  OF  WAR 


CORRECTED  TO  APRIL  15,  1917 

(CHANGES,  NO.  1) 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1917 


^^3 


^:f^ 


Wab  Depaetment, 

Document  No.  560. 

Office  of  the  Judge  Advocate  General. 


War  Department, 
Office  of  the  Chief  of  Staff, 
'Washington^' Novewher  W^  1916. 
The  Manual  for  Courts-Martial,  Courts  of  Inquiry,  and  of  other 
Procedure  under  Military  Law,  prepared  by  direction  of  the  Secre- 
tary of  War  in  the  Office  of  the  Judge  Advocate  General  for  use  in 
the  Army  of  the  United  States,  is  approved,  and  will  be  published 
for  the  information  and  guidance  of  all  concerned,  including  all 
courts-martial  in  the  National  Guard  of  the  several  States  and  Ter- 
ritories and  the  District  of  Columbia  not  in  the  service  of  the  United 
States,  in  so  far  as  applicable,  under  section  102  of  the  national- 
defense  act,  approved  June  3,  1916.     The  provisions  of  this  Manual 
will  be  in  force  and  effect  on  and  after  March  1, 1917. 
By  order  of  the  Secretary  of  War : 

H.  L.  Scott, 
Major  General^  Chief  of  Staff. 

UL 


3G1339 


TABLE  OF  CONTENTS. 


Page. 

Introduction ix 

Chapter.  I.  Military  jurisdiction 1 

Section  I.  Source  and  kinds  of  military  jurisdiction 1 

Section  II.  Exercise  of  military  jurisdiction 2 

Section  III.  Persons  subject  to  military  law ^ 2 

Chapter  II.  Courts-martial — Classification — Composition 5 

Section.  I.   Classification 5 

Section  II.  Composition 6 

Chapter  III.  Courts-martial — ^By  whom  appointed 9 

Section  I.  General  courts-martial 9 

Section  II.  Special  courts-martial 12 

Section  III.  Summary  coiu*ts-martial 13 

Section  IV,  Judge  advocate 15 

Chapter  IV.  Courts-martial — ^Jurisdiction 17 

Section  I.  Jurisdiction  in  general 17 

Section  II.  Jurisdiction  of  general  courts-martial 21 

Section  III.  Jurisdiction  of  special  courts-martial 22 

Section  IV.  Jurisdiction  of  summary  courts-martial. . : 22 

Section  V.  Jurisdiction  of  other  military  tribunals 23 

Chapter  V.  Courts-martial — Procedure  prior  to  trial 25 

Section  I.  Arrest  and  confinement 25 

Section  II.  Arrest  of  deserters  by  civil  authorities 28 

Chapter  VI.  Courts-martial — Procedure  prior  to  trial  (continued) 31 

Section  I.  Preparation  of  charges 31 

Section  II.  Action  upon  charges 40 

Chapter  VII.  Courts-martial — Organization 43 

Section  I.  The  members 44 

Section  II.  The  judge  advocate 47 

Section  III.  Assistant  judge  advocate 51 

Section  IV.  Counsel 51 

Section  V.  Reporter 52 

Section  VI.  Interpreter 55 

Chapter  VIII.  Courts-martial — Organization  (continued) 57 

Section  I.  Challenges 57 

Section  II.  Oaths 61 

Section  III.  Continuances 63 

Section  IV.  Completion  of  organization G4 

Chapter  IX.  Courts-martial — Procedure  during  trial 65 

Section  I.  Arraignment 65 

Sectionll.  Pleas..... .     66 

Section  III.  Refusal  to  plead 73 

Section  IV.  Motions • 74 

Chapter  X.  Courts-martial — ^Witnesses  and  depositions •      77 

Section  I.  Attendance  of  witnesses 78 

Section  II.  Depositions 84 

Section  III.  Fees,  mileage,  and  expenses  of  witnesses 88 

V 


VI  CONTENTS. 

Page. 

Chapter  XI.  Courts-martial — Evidence 91 

Section  I.  Introductory  provisions 93 

Section  II.  Circumstantial  evidence 99 

Section  III.  Testimonial  evidence 101 

Section  IV.  Documents 119 

Section  V.  Examination  of  witnesses 122 

Section  VI.  Credibility  of  witnesses 125 

Section  VII.  Depositions  and  forpier  testimony 127 

Section  VIII.  Pr/ssumptions 130 

Section  IX.  Judicial  notice 137 

Chapter  XII.  Courts-martial — Concluding  incidents  of  the  trial 139 

Section  I.  Statements  and  arguments 140 

Section  II.  Findings Ill 

Section  III.  Previous  convictions 144 

Section  IV.  Sentences , 145 

Chapter  XIII.  Courts-martial — Punishments 151 

Section  I.  Disciplinary  power  of  commanding  officer 151 

Section  II.  Confinement  in  a  penitentiary 153 

Section  III.  War  Department  policy  regarding  punishments 156 

Section  IV.  Prohibited  punishments 160 

Section  V.  Death — Cowardice — Fraud 160 

Section  VI.  Maximum  limits 161 

Chapter  XIV.  Courts-martial — Procedure  of  special  and  summary  courts  and 

procedure  on  revision 171 

Section  I.  Special  courts-martial 171 

Section  II.  Summary  courts-martial 171 

Section  III.  Procedure  on  revision : 172 

Chapter  XV.  Courts-martial — Records  of  trial 173 

Section  I.  General  courts-martial 173 

Section  II.  Special  courts-martial 177 

Section  III.  Summary  courts-martial 178 

Section  IV.  Correction  of  records  of  trial • 178 

Section  V.  Disposition  of  records  of  trial 179 

Section  VI.  Loss  of  records  of  trial 180 

Chapter  XVI.  Courts-martial — ^Action  by  appointing  or  superior  authority 181 

Section  I.  Action  on  the  proceedings 182 

Section  II.  Action  after  promulgation  of  sentence 190 

Chapter  XVII.  Punitive  articles 193 

Section  I.  Enlistment — ^Muster — Returns 196 

Section  II.  Desertion — Absence  without  leave 201 

Section  III.  Disrespect — Insubordination — ^Mutiny 206 

Section  IV.  Arrest — Confinement 218 

Section  V.  War  offenses 225 

Section  VI.  Miscellaneous  crimes  and  offenses 237 

Chapter  XVIII.  Courts  of  inquiry 287 

Section  I.  Constitution 287 

Section  II.  Jurisdiction 288 

Section  III.  Composition 288 

Section  IV.  Powers 289 

Section  V.  Procedure , 290 

Section  VI.  Records - 292 


CONTENTS.  VII 

Page. 

Chapter  XIX.  Habeas  corpus 293 

Section  I.  Purpose  of  the  writ 293 

Section  II.  Where  restraint  is  by  the  United  States 293 

Section  III.  Return  to  writ  issued  by  State  court 294 

Section  IV.  Return  to  writ  issued  by  United  States  court 295 

Section  V.  Writ  issued  in  the  Philippine  Islands 295 

Chapter  XX.  Mscellaneous  and  transitory  provisions 297 

Section  I.  Miscellaneous  provisions 297 

Section  II.  Transitory  provision 301 

Appendices: 

1.  The  Articles  of  War 305 

2.  System  of  courts-martial  for  National  Guard  not  in  the  service  of  the 

United  States 331 

3.  Charge  sheet 333 

4.  Forms  for  charges 335 

5.  Suggestions  for  trial  judge  advocates 351 

6.  Form  for  record — General  court-martial  and  revision  proceedings 355 

7.  Form  for  record — Special  court-martial 363 

8.  Form  for  record — Summary  court-martial 365 

9.  Forms  for  sentences 367 

10.  Forms  for  action  by  reviewing  authority 369 

11.  Court-martial  orders 373 

(a)  General  court-martial t 373 

(6)  Special  court-martial 374 

12.  Form  for  interrogatories  and  deposition 377 

13.  Subpoena  for  civilian  witness 381 

14.  Warrant  of  attachment 385 

15.  Returns  and  briefs  in  habeas  corpus  proceedings 387 

16.  Voucher  (Form  338):  Civilian  witness  not  in  Government  employ 395 

17.  Voucher  (Form  350A):  Civilian  witness  in  Government  employ 399 

18.  Voucher  (Form  339):  Personal  services,  reporter 403 

19.  Report  of  inquest 407 


INTRODUCTION  TO  THE  FIRST  EDITION. 

This  Manual  introduces  and  interprets  to  the  Military  Establish- 
ment the  revised  Articles  of  War  which  become  effective  March  1, 
1917.  The  revision  supersedes  the  existing  articles,  sometimes  desig- 
nated the  Code  of  1874,  and  repeals  all  other  laws  and  parts  of  laws 
inconsistent  therewith.  It  will  facilitate  an  understanding  of  the 
scope  and  effect  of  the  revision  to  refer  to  the  history  and  develop- 
ment of  the  amended  Code  of  1874,  indicate  briefly  its  most  serious 
defects,  and  summarize  the  principal  changes  introduced  by  the 
revision. 

HISTORY    OF    UNITED    STATES    ARTICLES    OF    WAR    PRIOR   TO    1916. 

Passing  over  the  earlier  enactments  of  the  American  Colonies  of 
Articles  of  War  for  the  government  of  their  respective  forces,  ex- 
amples of  which  are  found  in  the  articles  adopted  by  the  Provisional 
Congress  of  Massachusetts  Bay,  April  5,  1775  (Am.  Archives,  4th 
series,  vol.  1,  p.  1350),  and  the  similar  articles  adopted  in  May  and 
June  of  that  year  by  the  Provincial  Assemblies  of  Connecticut  and 
Rhode  Island  and  the  Congress  of  New  Hampshire  (idem,  vol.  2, 
pp.  565,  1153,  1180),  we  come  (a)  to  the  first  American  articles 
enacted  by  the  Second  Continental  Congress  June  30,  1775,  and 
copied  largely  from  the  British  Code  of  1765  and  the  Massachusetts 
Code;  (h)  the  Code  of  1776,  an  enlargement  and  modification  of  the 
Code  of  1775 ;  and  (c)  the  supplemental  Code  of  1786,  regulating 
the  composition  of  courts-martial  and  generally  the  administration 
of  military  justice.  The  articles  in  force  on  the  adoption  of  the 
Constitution  of  the  United  States  were,  by  act  of  the  First  Congress, 
made  to  apply  to  the  then  existing  Army  "  so  far  as  the  same  are  ap- 
plicable" and  were  continued  in  force  by  successive  enactments 
until  April  10,  1806,  when,  by  act  of  Congress  of  that  date,  revised 
articles,  adapted  to  the  changed  form  of  government,  were  enacted, 
superseding  all  other  enactments  on  the  same  subject.  Thus  the 
Code  of  1806  was,  in  effect,  a  reenactment  of  the  articles  in  force 
during  and  immediately  following  the  period  of  the  Revolutionary 
War,  with  only  such  modifications  as  were  necessary  to  adapt  them 
to  the  Constitution  of  the  United  States.  It  comprised  101  articles, 
with  an  additional  provision  relating  to  spies.  During  the  War  of 
1812  four  of  the  articles  of  this  code  were  amended,  during  the 
Seminole  wars  three  articles  were  amended  and  one  new  article  added, 
and  during  the  Civil  War  seventeen  articles  were  amended  and  eight 


X  MANUAL  FOR  COURTS-MARTIAL. 

new  articles  added.  All  of  these  new  articles  and  amendments  were 
gathered  into  the  restatement  of  the  articles  which  appears  in  the 
Revised  Statutes  of  1874,  making  a  code  of  128  articles,  with  the 
additional  provision  relating  to  spies.  Between  that  year  and  1912, 
when  this  revision  was  submitted  to  Congress,  the  more  important 
amendments  have  been  the  summary  court  and  maximum  punishment 
acts  of  1890 ;  the  repeal  of  articles  80  and  110  in  1898 ;  the  repeal  of 
article  123  and  the  amendment  of  articles  122  and  124  in  1910. 

DEFECTS    OF   ARTICLES   PRIOR   TO    1916    REVISION. 

The  more  serious  defects  of  the  Code  of  1874  were  those  incident  to 
its  development  by  compilation  from  a  now  obsolete  and  replaced 
foreign  code,  and  by  piecemeal  amendment  made  during  periods  of 
war  and  under  the  stress  of  war  conditions.  Eighty-seven  articles 
of  the  Code  of  1806  survived  in  the  amended  Code  of  1874  without 
change  or  with  only  minor  changes  of  style,  and  most  of  the  remain- 
ing articles  of  that  code  without  substantial  change,  with  the  result 
that  the  latter  code  was  unscientific  in  its  arrangement  and  contained 
many  provisions  either  wholly  obsolete  or  illy  adapted  to  present 
service  conditions.  We  may  cite  as  examples  illustrating  its  archaic 
character  the  following  of  its  provisions: 

The  fifty-fourth  and  fifty-fifth  articles  prohibited  any  kind  of  riot 
to  the  disquieting  of  "  citizens  of  the  United  States,"  and  article  59 
made  mandatory  the  turning  over  to  a  civil  magistrate  of  officers 
and  soldiers  accused  of  an  offense  against  the  person  or  property  of 
any  "  citizen  of  the  United  States,"  but  only  "  upon  application  duly 
made  by  or  in  behalf  of  the  party  injured,"  ignoring  the  more 
modern  doctrine  that  all  persons  residing  within  the  United  States 
are  entitled  to  the  equal  protection  of  the  laws,  and  that  crimes  are 
now  punished,  not  at  the  instance  of  an  individual  but  at  the  instance 
of  the  public.  Article  126  regulated  administration  upon  the  effects 
of  deceased  soldiers  and  devolved  the  duties  incident  thereto  upon 
the  commanding  officer  of  the  troop,  battery,  or  company  to  which 
the  deceased  soldier  belonged,  but  made  no  provision  for  similar 
cases  arising  among  the  large  class  of  soldiers  who,  under  the  present- 
day  organization,  do  not  belong  to  troops,  batteries,  or  companies; 
and  similar  instances  might  be  multiplied  indefinitely. 

IMPORTANT   CHANGES   IN   REVISION. 

The  limits  assignable  to  this  introduction  permit  only  the  follow- 
ing brief  summary  of  the  more  important  changes  introduced  by  the 
revised  articles: 

1.  Certain  provisions  of  the  Revised  Statutes  and  of  the  Statutes 
at  Large  in  the  nature  of  Articles  of  War,  and  proper  for  this  reason 
to  be  incorporated  in  a  military  code,  are  reenacted  in  their  proper 


INTRODUCTION.  XI 

places  in  the  revised  articles,  and  certain  other  statutes  relating  to  the 
procedure  and  practice  of  the  criminal  courts  of  the  United  States 
are  made  the  basis  of  new  articles.  Examples  of  legislation  incor- 
porated and  of  new  articles  suggested  are  found  in  revised  articles 
2,  4,  7,  8,  22,  23, 25,  30,  34,  36,  37,  38,  42,  45,  48,  52,  80,  82, 106, 107, 108, 
112,  114,  117,  118,  and  119. 

2.  Articles  1,  10,  11,  36,  37,  52,  53,  76,  87,  and  101  of  the  Code  of 
1874,  either  wholly  obsolete  or  embracing  only  matters  properly 
within  the  field  of  Army  Kegulations,  have  been  dropped. 

3.  Related  provisions  have  been  brought  together  under  five  sepa- 
rate headings,  and  where  subheads  would  serve  a  useful  purpose  they 
have  been  employed  to  complete  the  classification. 

4.  Provisions  relating  to  the  same  subject-matter  have  been  con- 
solidated into  a  single  article.  Examples  of  such  consolidation  may 
be  found  in  revised  article  48,  which  reenacts  with  modifications 
the  substantial  provisions  of  four  articles  of  the  Code  of  1874  and 
one  section  of  the  Revised  Statutes,  all  relating  to  the  confirmation 
of  sentences  of  courts-martial;  and  in  revised  article  61,  which  re- 
enacts  in  brief  form  the  material  provisions  of  six  of  the  existing 
articles  of  that  code  relating  to  unauthorized  absences. 

5.  The  authority  to  convene  general  courts-martial  has  been  ex- 
tended to  include  "  the  commanding  officer  of  any  district  or  of  any 
force  or  body  of  troops"  when  empowered  by  the  President,  thus 
providing  for  the  case  of  expeditionary  forces  not  the  equivalent  of 
a  brigade  or  higher  unit,  and  other  emergent  services,  and  permitting 
general  court-martial  jurisdictions  to  be  multiplied  as  the  exigencies 
of  the  service  may  require.     (Art.  8.) 

6.  The  jurisdiction  of  the  general  court-martial  is  made  concur- 
rent with  that  of  the  military  commission  and  other  war  tribunals  in 
the  trial  of  offenses  against  the  laws  of  war,  and  further  extended  to 
include  the  capital  offenses  of  murder  and  rape  when  committed  in 
time  of  peace  at  places  outside  the  geographical  limits  of  the  States 
of  the  Union  and  the  District  of  Columbia.     (Arts.  12, 15,  and  92.) 

7.  Authority  is  granted  for  the  detail  of  one  or  more  assistant  trial 
judge  advocates  for  each  general  court-martial,  with  power  to  act 
for  the  judge  advocate,  thus  largely  increasing  the  capacity  of  these 
courts  in  the  disposition  of  cases.     (Arts.  11  and  116.) 

8.  The  provision  of  the  Code  of  1874  making  regular  officers  incom- 
petent to  sit  on  courts-martial  for  the  trial  of  officers  and  soldiers  of 
other  forces  is  abolished,  and  all  distinctions  as  to  eligibility  of 
officers  of  the  several  forces  for  the  performance  of  court-martial 
duty  is  removed.     (Art.  4.) 

9.  A  disciplinary  court,  intermediate  between  the  general  and  sum- 
mary court,  with  adequate  power  to  impose  disciplinary  punishments 
but  without  the  power  to  adjudge  dishonorable  discharge,  is  provided 


Xn  MANUAL  FOR  COURTS-MARTTAL. 

for  the  trial  of  offenses  where  the  retention  of  the  offender  with  his 
command,  to  be  disciplined  rather  than  his  dishonorable  discharge,  is 
contemplated,  leaving  the  general  court-martial  with  its  extended 
jurisdiction  to  be  resorted  to  in  grave  cases  calling  for  discipline,  dis- 
honorable discharge,  or  prolonged  detention  in  confinement  with  or 
without  dishonorable  discharge,  and  the  summary  court  for  the  trial 
of  minor  offenses  calling  for  light  punishments  of  confinement  and 
forfeiture. 

10.  The  power  to  prescribe  the  procedure,  including  modes  of 
proof,  in  cases  before  courts-martial  and  other  military  tribunals  has 
been  expressly  delegated  to  the  President.     (Art.  38.) 

11.  The  statute  of  limitations  of  the  Code  of  1874  (art.  103,  as 
amended  by  act  of  Apr.  11, 1890)  fixed  a  uniform  period  of  two  years 
of  liability  to  trial  and  punishment  by  general  court-martial  (not 
expressly  excepting  any  capital  offenses),  to  be  reckoned  from  the 
date  of  the  commission  of  the  offense  to  the  date  of  the  issuing  of 
the  order  for  trial,  except  in  case  of  peace  desertion,  when  the  period 
was  required  to  be  reckoned  from  the  date  of  expiration  of  enlistment 
from  which  the  soldier  deserted  to  the  date  of  his  arraignment.  No 
period  of  limitation  was  prescribed  in  the  case  of  inferior  courts. 
The  new  military  statute  of  limitations  (art.  39)  expressly  excepts 
from  its  operation  the  capital  offenses  of  desertion  committed  in  time 
of  war,  mutiny,  and  murder,  fixes  the  period  of  limitation  at  three 
years  for  the  graver  common  law  and  statutory  felonies  denounced 
and  punished  in  revised  articles  93  and  94,  conforming  to  the  rule 
governing  Federal  civil  courts  with  concurrent  jurisdiction  of  these 
offenses;  and  the  same  period  for  the  offense  of  desertion  in  time  of 
peace,  a  study  of  statistics  having  shown  that  few,  if  any,  deserters 
of  this  class  are  arrested  after  three  years  from  date  of  desertion.  The 
two-year  period  of  limitation  prescribed  by  the  Code  of  1874  is  re- 
tained in  the  revised  articles  for  all  other  offenses  than  those  above 
named,  and  the  uniform  rule  is  established  that  all  these  periods  shall 
be  reckoned  from  the  date  of  commission  of  the  offense  to  the  date  of 
arraignment.    The  new  statute  covers  trials  by  any  court-martial. 

12.  The  right  of  persons  in  the  military  service  to  remove  to  a 
Federal  court  all  suits  and  prosecutions  brought  against  them  in  a 
State  court  for  acts  done  under  the  color  of  military  status  is 
secured  by  article  117  of  the  revised  code. 

13.  The  right  of  the  reviewing  or  confirming  authority  to  mitigate 
a  finding  of  guilty  by  a  court-martial  to  a  finding  of  guilty  of  any 
lesser  included  offense  is  conferred  by  articles  47  and  49  of  the 
revised  code. 

14.  The  article  of  the  Code  of  1874  respecting  the  taking  of  deposi- 
tions (art.  91)  has  proved  in  practice  unsatisfactory,  in  that  it 
authorized  the  use  of  a  deposition  when  the  witness  resided  just 


INTRODUCTION.  XIII 

outside  the  State  in  which  the  court  was  in  session,  though  perhaps 
only  a  few  miles  from  the  place  of  its  sessions,  but  did  not  permit 
the  use  of  a  deposition  when  the  witness  resided  in  the  State,  even 
though  his  place  of  residence  was  remote  from  the  place  of  meeting ; 
and  further  unsatisfactory  in  that  it  made  no  provision  for  the  tak- 
ing of  a  deposition  when  a  witness  was  about  to  go  beyond  the  State, 
Territory,  or  District  in  which  the  court  was  sitting,  or  when,  by 
reason  of  age,  sickness,  bodily  infirmity,  or  other  reasonable  cause,  he 
was  unable  to  appear  and  testify  in  person  at  the  place  of  trial. 
These  deficiencies  are  supplied  in  article  25  of  the  new  code,  which 
is  drawn  so  as  to  conform,  in  the  main,  to  the  provisions  of  section 
863  of  the  Kevised  Statutes  regulating  the  taking  of  depositions  for 
use  in  civil  suits. 

15.  Under  a  provision  of  the  Code  of  1874  (art.  96)  no  person 
might  be  sentenced  to  suffer  death  except  by  the  concurrence  of  two- 
thirds  of  the  members  of  a  general  court-martial,  but  it  was  open 
to  a  bare  majority  of  the  court  to  find  an  accused  guilty  of  an  offense 
for  which  the  death  sentence  was  mandatory ;  so  that  the  article  did 
not,  as  a  matter  of  fact,  furnish  any  special  protection  to  an  accused 
in  a  case  of  that  kind,  in  view  of  the  obvious  duty  the  court  had  to 
impose  the  sentence  required  by  law  upon  a  legal  conviction.  In 
revised  article  43  the  requirement  is  imposed  that  two- thirds  of  the 
members  of  the  court  shall  concur  in  the  conviction  of  an  accused  of 
an  offense  for  which  the  death  penalty  is  made  mandatory  by  law, 
as  well  as  in  the  imposition  of  the  sentence  of  death. 

The  foregoing  list  of  important  changes  introduced  by  the  revised 
articles  is  by  no  means  complete,  as  there  has  been  a  general  recast- 
ing of  the  articles;  but  it  embraces  those  to  which  it  is  desirable 
that  the  special  attention  of  the  service  be  invited.  The  complete 
recasting  of  the  articles  has  not  extended  to  changing  language  de- 
fective in  form,  but  to  which  settled  construction  has  assigned  a 
definite  meaning. 

SCOPE  OF  PRESENT   MANUAL. 

The  term  "  military  law  "  is  frequently  used  in  a  wide  sense  to 
include,  not  only  the  disciplinary,  but  also  the  administrative  law 
of  the  military  establishment,  as,  for  instance,  the  whole  range  of 
the  Army  Regulations.  But  in  distinguishing  military  from  civil 
law  we  say  that  military  law  is  the  law  relating  to,  and  administered 
by,  military  courts.  Military  law,  in  this  sense,  concerns  itself  with 
the  trial  and  punishment  of  persons  subject  to  it.  This  is  the  dis- 
ciplinary aspect  of  the  subject,  and  while  officers,  as  such,  must  have 
a  knowledge  of  military  law  in  the  broader  definition,  the  proper 
functions  of  a  court-martial  manual  are  confined  to  the  law  of  mili- 
tary discipline. 


XIV  MAXUAL  FOR   COURTS-MARTIAL. 

Earlier  manuals  have  functioned  in  this  field,  but  they  have,  in 
general,  purported  to  be  only  compilations  of  pertinent  statutes  and 
regulations,  thus  furnishing  officers  and  courts-martial  with  the 
framework  of  the  law  which  they  are  required  to  administer,  but 
leaving  them  to  a  search  of  texts  and  authorities  for  the  fullness  of 
the  principles  applicable  to  even  the  most  familiar  and  elementary 
questions.  While  the  present  work  confines  itself  to  the  disciplinary 
aspect  of  the  subject,  and  thus  makes  no  profession  to  be  a  manual  of 
military  law,  it  is  intended  to  cover  its  appropriate  field  as  fully  as 
is  possible  under  the  restrictive  definition  of  a  manual,  and  thus  to 
place  in  the  hands  of  officers  a  guide  that  shall  be  reasonably  sufficient 
in  all  the  ordinary  exigencies  of  service. 

The  Manual  in  its  arrangement  of  subject  matter  follows,  as  far 
as  has  been  found  practicable,  the  arrangement  of  the  new  code.  In 
scope  it  has  been  extended  to  include  chapters  on  "Evidence"  and 
''  Punitive  articles."  In  the  preparation  of  the  former  chapter  this 
office  has  had  the  assistance  of  Prof.  Wigmore  of  the  Northwestern 
University,  recently  commissioned  a  major  and  judge  advocate  in 
the  Officers'  Reserve  Corps.  Prof.  Wigmore  has  given  liberally  of 
his  time  in  the  preparation  of  this  chapter,  has  lent  the  authority  of 
his  name  to  what  appears  therein,  and  has  performed  a  work  of 
great  value  for  which  appreciation  will  be  general  throughout  the 
service.  In  the  chapter  on  "Punitive  articles"  an  effort  has  been 
made  to  meet  what  is  conceived  to  be  a  very  urgent  need  in  our  serv- 
ice, namely,  a  statement  of  the  essentials  of  proof  under  the  more 
important  offenses  denounced  and  punished  by  the  new  code,  for  the 
guidance  of  trial  judge  advocates. 

Due  to  the  brief  interval  between  the  enactment  of  the  new  code 
and  the  date  when  the  Manual  had  to  go  to  the  printer  in  order  to 
be  available  for  troops  on  foreign  station  prior  to  the  taking  effect 
of  the  new  code,  the  preparation  of  the  Manual  has  necessarily  been 
done  with  a  haste  which  in  a  work  of  such  importance  it  would  have 
been  desirable  to  avoid.  It  is  hoped,  however,  that  no  fundamental 
errors  appear  therein.  In  using  the  Manual  it  should  be  borne  in 
mind  that  over  attention  to  technicalities  represents  a  failure  to  grasp 
the  spirit  of  the  revision  and  will  lead  to  requests  for  interpretation 
which  may  usually  be  avoided  by  the  application  of  broad  principles. 
It  is  hoped  that  by  the  amplification  of  chapters  of  this  Manual  and 
the  inclusion  of  new  chapters  on  such  subjects  as  "  The  law  of  riot 
duty,"  "  Martial  law,"  and  "  Military  government "  future  editions 
may  be  made  to  embrace  all  that  is  necessary  to  the  service  at  large 
regarding  the  general  subject  of  military  law. 

January  1,  1917. 


ABBREVIATIONS. 

A.  R Army  Regulations,  1913. 

A.  W Articles  of  War,  Code  of  1916. 

Bishop Bishop's  New  Criminal  Law,  8th  edition. 

Clark Clark's  Criminal  Law,  2d  edition. 

Clark  and  Marshall The  Law  of  Crimes,  2d  edition. 

Cj'-c Cyclopedia  of  Law  and  Procedure. 

Davis A  Treatise  on  the  Military  Law  of  the  United  States, 

2d  edition. 
Digest Digest   of   Opinions  of  Judge   Advocates   General   of 

the  Army,  1912. 

Dudley Military  Law  and  Procedure  of  Courts-Martial,  1910. 

Greenleaf Law  of  Evidence,  16th  edition. 

R.  S Revised  Statutes  of  the  United  States,  1878. 

Thompson Law  of  Trials. 

Wharton Criminal  Law,  9th  edition. 

Wigmore Law  of  Evidence. 

Wigniore,  P.  C Pocket  Cod^  of  Evidence. 

Winthrop Military  Law  and  Precedents,  2d  edition,  1896. 

XV 


The  discipline  and  reputation  of  the  Army  are  deeply  in- 
volved in  the  manner  in  which  military  courts  are  conducted 
and  justice  administered.  The  duties,  therefore,  that  de- 
volve on  officers  appointed  to  sit  as  members  of  courts-mar- 
tial are  of  the  most  grave  and  important  character.  That 
these  duties  may  be  discharged  with  justice  and  propriety 
it  is  incumbent  on  all  officers  to  apply  themselves  diligently 
to  the  acquirement  of  a  competent  knowledge  of  military 
law,  to  make  themselves  perfectly  acquainted  with  all  orders 
and  regulations,  and  with  the  practice  of  military  courts. — 
Army  Regulations,  1835,  Article  XXXV,  paragraph  1. 


CHAPTER  I. 
MILITARY  JURISDICTION. 


Page. 

Section  I:  Source  and  kinds  of  military  jurisdiction 1 

1.  Source 1 

2.  Kinds 1 

(a)  Military  government 1 

(6)  Martial  law  at  home 1 

(c)  Martial  law  applied  to  the  Army .' 2 

(d)  Military  law 2 

Section  II:  Exercise  of  military  jurisdiction 2 

3.  Military  tribunals 2 

(a)  Military  commissions  and  provost  courts 2 

(6)  Coiu-ts-martial,  general,  special,  and  simimary 2 

(c)  Courts  of  inquiry 2 

Section  III:  Persons  subject  to  military  law 2 

4.  Classes  enumerated 2 

(a)  Regular  Army,  National  Guard,  and  Volunteers 3 

(&)  Cadets 4 

(c)  Marine  Corps 4 

(d)  Medical  Department  of  Navy  serving  with  detached  marines 4 

(e)  Retainers  to  the  camp  and  others 4 

(/■)  Persons  serving  sentence  of  court-martial 4 

(g)  Army  field  clerks 4 

(h)  Field  clerks,  Quartermaster  Corps 4 


Section  I. 
SOURCE  AND  KINDS  OF  MILITARY  JURISDICTION. 

1.  Source. — The  source  of  military  jurisdiction  is  the  Constitution, 
the  specific  provisions  relating  to  it  being  found  in  powers  granted 
to  Congress,  in  the  authority  vested  in  the  President,  and  in  a  pro- 
vision of  the  fifth  amendment. 

2.  Kinds. — Military  jurisdiction  is  of  four  kinds,  viz : 

(a)  Military  government  (the  law  of  hostile  occupation)  ;  that  is, 
military  power  exercised  by  a  belligerent  by  virture  of  his  occupation 
of  an  enemy's  territory,  over  such  territory  and  its  inhabitants.  This 
belongs  to  the  law  of  war  and  therefore  to  the  law  of  nations.  When 
a  conquered  territory  is  ceded  to  the  conqueror,  military  government 
continues  until  civil  government  is  established  by  the  new  sovereign. 

(b)  Martial  law  at  home  (or,  as  a  domestic  fact) ;  by  which  is 
meant  military  power  exercised  in  time  of  war,  insurrection,  or  re- 
bellion in  parts  of  the  country  retaining  their  allegiance,  and  over 
persons  and  things  not  ordinarily  subjected  to  it. 

91487°— 17 2  1 


2  MANUAt  FOR   COUETS-MABTIAL. 

(c)  Martial  law  applied  to  the  Army ;  that  is,  military  power  extend- 
ing in  time  of  war,  insurrection,  or  rebellion  over  persons  in  the  mili- 
tary service,  as  to  obligations  arising  out  of  such  emergency  and  not 
falling  within  the  domain  of  military  law,  nor  otherwise  regulated 
by  law. 

The  last  two  divisions  {h)  and  (c)  are  applications  of  the  doctrine 
of  necessity  to  a  condition  of  war.  They  spring  from  the  right  of 
national  self-preservation. 

(d)  Military  law;  which  is  the  legal  system  that  regulates  the  gov- 
ernment of  the  military  establishment.  It  is  a  branch  of  the  municipal 
law,  and  in  the  United  States  derives  its  existence  from  special  consti- 
tutional grants  of  power.  It  is  both  written  and  unwritten.  The 
sources  of  written  military  law  are  the  Articles  of  War  enacted  by 
Congress  August  29,  1916;  other  statutory  enactments  relating  to 
the  military  service ;  the  Army  Regulations ;  and  general  and  special 
orders  and  decisions  promulgated  by  the  War  Department  and  by 
department,  post,  and  other  commanders.  The  unwritten  military 
law  is  the  "  custom  of  war,"  consisting  of  customs  of  service,  both  in 
peace  and  war. 

This  Manual  deals  primarily  with  military  law. 

Section  II. 
EXERCISE  OF  MILITARY  JURISDICTION. 

3.  Military  tribunals. — ^Military  jurisdiction  is  exercised  through 
the  following  military  tribunals : 

(a)  Military  commissions  and  provost  courts,  for  the  trial  of  offenders 
against  the  laws  of  war  and  under  martial  law. 

(b)  Courts-martial — general,  special,  and  summary — for  the  trial  of 
offenders  against  military  law.     (A.  W.  3.) 

[Note  1. — ^The  general  court-martial  has  concurrent  jurisdiction  with  military 
commissions  and  provost  courts  to  try  offenders  against  the  laws  of  war. 
(A.  W.  12.) 

Note  2. — For  the  authority  to  appoint  courts-martial  in  the  National  Guard 
not  in  the  service  of  the  United  States,  and  the  jurisdiction  and  powers  of  such 
courts,  see  sections  102-108,  act  of  June  3,  1916,  39  Stat.,  208,  209 ;  Appendix  2, 
post] 

(c)  Courts  of  inquiry,  for  the  examination  of  transactions  of  or 

accusations  or  imputations  against  officers  or  soldiers.     (A.  W.  97.) 

[Note. — ^The  composition,  jurisdiction,  procedure,  etc.,  of  these  tribunals  are 
treated  in  the  succeeding  chapters  of  this  Manual.] 

Section  III. 
PERSONS  SUBJECT  TO  MILITARY  LAW. 

4.  Classes  enumerated. — ^The  following  persons  are  subject  to  the 

Articles  of  War  (A.  W.  2) : 

[Note. — Wherever  the  following  words  are  used  in  the  Articles  of  War  or 
this  Manual,  they  are  to  be  construed  in  the  sense  indicated  below,  unless  the 


MILITAKY  JUKISDICTION",    *  8 

context  shows  that  a  different  sense  is  intended,  v^iz:  (a)  The  word  "  officer  " 
shall  be  construed  to  refer  to  a  commissioned  officev ;  ( & )  the  word  "  soldier  '* 
shall  be  construed  as  including  a  noncommissioned  officer,  a  private,  or  any 
other  enlisted  man;  (c)  the  word  "company"  shall  be  understood  as  including 
a  troop  or  battery  ;  and  (d)  the  word  "  battalion  "  shall  be  understood  as  includ- 
ing a  squadron.     (A.  W.  1.)] 

(a)  All  officers  and  soldiers  belonging  to  the  Regular  Army  of 

the  United  States;  all  volunteers,  from  the  dates  of  their  muster  or 

acceptance  into  the  military  service  of  the  United  States;  and  all 

other  persons  lawfully  called,  drafted,  or  ordered  into,  or  to  duty,  or 

for  training  in  the  said  service,  from  the  dates  they  are  required  by 

the  terms  of  the  call,  draft,  or  order  to  obey  the  same. 

[Note. —  (a)  Regular  Army. — The  Regular  Army  of  the  United  States,  includ- 
ing the  existing  organizations,  shall  consist  of  sixty-four  regiments  of  Infantry, 
twenty-five  regiments  of  Cavalry,  twenty-one  regiments  of  Field  Artillery,  a 
Coast  Artillery  Corps,  the  brigade,  division,  army  corps,  and  army  headquar- 
ters, with  their  detachments  and  troops,  a  General  Staff  Corps,  an  Adjutant 
General's  Department,  an  Inspector  General's  Department,  a  Judge  Advocate 
General's  Department,  a  Quartermaster  Corps,  a  Medical  Department,  a  Corps 
of  Engineers,  an  Ordnance  Department,  a  Signal  Corps,  the  officers  of  the 
Bureau  of  Insular  Affairs,  the  Militia  Bureau,  the  detached  officers,  the 
detached  noncommissioned  officers,  the  chaplains,  the  Regular  Army  Reserve, 
all  organized  as  hereinafter  provided,  and  the  following  as  now  authorized  by 
law :  The  officers  and  enlisted  men  on  the  retired  list ;  the  additional  officers ; 
the  professors,  the  Corps  of  Cadets,  the  general  army  service  detachment,  and 
detachments  of  Cavalry,  Field  Artillery,  and  Engineers,  and  the  band  of  the 
United  States  Military  Academy ;  the  post  noncommissioned  staff  officers ;  the 
recruiting  parties,  the  recruit  depot  detachments,  and  unassigned  recruits ;  the 
service  school  detachments ;  the  disciplinary  guards ;  the  disciplinary  organiza- 
tions ;  the  Indian  Scouts ;  and  such  other  officers  and  enlisted  men  as  are  now 
or  may  be  hereafter  provided  for.     (Sec.  2,  act  of  June  3,  1916,  39  Stat.,  166.) 

(&)  Volunteers. — The  volunteer  forces  shall  be  subject  to  the  laws,  orders, 
and  regulations  governing  the  Regular  Army  in  so  far  as  such  laws,  orders, 
and  regulations  are  applicable  to  officers  or  enlisted  men  whose  permanent 
retention  in  the  military  service,  either  on  the  active  list  or  on  the  retired  list, 
is  not  contemplated  by  existing  law.     (Sec.  4,  act  of  Apr.  25,  1914,  38  Stat,  347.) 

(c)  National  Guard. — The  National  Guard,  when  called  as  such'  into  the 
service  of  the  United  States,  shall,  from  the  time  they  are  required  by  the 
terms  of  the  call  to  respond  thereto,  be  subject  to  the  laws  and  regulations 
governing  the  Regular  Army,  so  far  as  such  laws  and  regulations  are  applicable 
to  officers  and  enlisted  men  whose  permanent  retention  in  the  military  service, 
either  on  the  active  list  or  on  the  retired  list,  is  not  contemplated  by  existing 
law.     (Sec.  101,  act  of  June  3,  1916,  39  Stat,  208.) 

[Note. — The  militia  when  called  into  the  service  of  the  United  States  is  also 
subject  to  military  law.     (35  Stat,  399.)] 

(d)  National  Chiard  when  drafted  into  Federal  service. — Members  of  the 
National  Guard  and  the  National  Guard  Reserve  drafted  into  the  military 
service  of  the  United  States  shall,  fronj  the  date  of  their  draft,  stand  dis- 
charged from  the  militia,  and  shall  from  said  date  be  subject  to  such  laws  and 
regulations  for  the  government  of  the  Army  of  the  United  States  as  may  be 
applicable  to  members  of  the  Volunteer  Army.  (Sec.  Ill,  act  of  June  3,  1916, 
39  Stat,  211.) 

(e)  Officers'  Reserve  Corps. — Any  officer  who,  while  holding  a  commission  in 
the  Officers'  Reserve  Corps,  shall  be  ordered  to  active  service  by  the  Secretary 
of  War  shall,  from  the  time  he  shall  be  required  by  the  terms  of  his  order  to 
obey  the  same,  be  subject  to  the  laws  and  regulations  for  the  government  of 
the  Army  of  the  United  States,  in  so  far  as  they  are  applicable  to  officers  whose 
permanent  retention  in  the  military  service  is  not  contemplated.  (Sec.  38,  act 
of  June  3,  1916,  39  Stat.,  190.) 

(/)  The  Enlisted  Reserve  Corps. — Any  enlisted  man  of  the  Enlisted  Reserve 
Corps  ordered  to  active  service  or  for  purposes  of  instruction  or  training  shall, 
from  the  time  he  is  required  by  the  terms  of  the  order  to  obey  the  same,  be 
subject  to  the  laws  and  regulations  for  the  government  of  the  Army  of  the 
United  States.    (Sec.  55,  act  of  June  3,  1916,  39  Stat,  195.)  ] 


4  MANUAL.  -FOB  COUETS-MAETIAL. 

(h)  Oadets;  '  ;  • 

(c)  Officers  and  soldiers  of  the  Marine  Corps  when  detached 
for  service  witn  the  armies  of  the  United  States  by  order  of  the 
President.     (A.  W.  2.) 

(d)  Officers  and  enlisted  men  of  the  Medical  Department  of  the 
Navy,  serving  with  a  body  of  marines  detached  for  service  with  the 
Army  in  accordance  with  the  provisions  of  section  sixteen  hundred 
and  twenty- one  of  the  Revised  Statutes,  shall,  while  so  serving,  be 
subject  to  the  rules  and  articles  of  war  prescribed  for  the  govern- 
ment of  the  Army  in  the  same  manner  as  the  officers  and  men  of  the 
Marine  Corps  while  so  serving.   (Act  of  Aug.  29, 1916,  39  Stat.,  573.) 

[Note. —  (a)  Except  as  provided  in  (c)  and  (d)  supra  or  otherwise  spe- 
cifically provided  by  law,  tlie  Articles  of  War  do  not  apply  to  any  person 
under  the  United  States  naval  jurisdiction.  (6)  An  officer  or  soldier  of  the 
Marine  Corps  detached  for  service  with  the  Army  may  be  tried  by  military 
court-martial  for  an  offense  committed  against  the  laws  for  the  government  of 
the  naval  service  prior  to  his  detachment  and  for  an  offense  committed  against 
the  Articles  of  War  he  may  be  tried  by  a  naval  court-martial  after  such  detach- 
ment ceases.     (A.  W.  2.)] 

(e)  All  retainers  to  the  camp  and  all  persons  accompanying  or 
serving  with  the  armies  of  the  United  States  without  the  territorial 
jurisdiction  of  the  United  States,  and  m  time  of  war  all  such  re- 
tainers and  persons  accompanying  or  serving  with  the  armies  of 
the  United  States  in  the  field,  both  within  amd  without  the  terri- 
torial jurisdiction  of  the  United  States  though  not  otherwise  subject 
to  the  Articles  of  War. 

[Note. — In  addition  to  the  two  classes  (a)  "retainers  to  the  camp"  and  (&) 
"  persons  serving  with  the  armies  of  the  United  States  in  the  field  "  who  were 
made  subject  to  military  jurisdiction  by  A.  W.  60  of  the  code  of  1806  (A.  W. 
63  of  the  revision  of  1874),  A.  W.  2  of  the  code  of  1916  includes  a  third  class, 
viz,  (c)  "persons  accompanying  the  armies  of  the  United  States."] 

(/)  All  persons  under  sentence  adjudged  by  courts-martial. 
{g)  Army  field  clerks. 

[Note. — Hereafter  headquarters  clerks  shall  be  known  as  Ai-my  field  clerks 
and  shall  *  *  *  be  subject  to  the  rules  and  Articles  of  War.  (Sec.  1,  act 
of  Aug.  29,  1916,  39  Stat,  625.)] 

(A)  Field  clerks.  Quartermaster  Corps. 

[Note  1. — Hereafter  not  to  exceed  two  hundred  clerks,  Quartermaster  Corps, 
*  *  *  shall  be  known  as  field  clerks.  Quartermaster  Corps,  *  *  *  and 
shall  be  subject  to  the  rules  and  Articles  of  War.  (Act  of  Aug.  29,  1916, 
39  Stat,  626.)] 

[Note  2. — Inmates  of  the  Soldiers'  Home  (R.  S.  4824),  the  National  Home  for 
Disabled  Volunteer  Soldiers  (R.  S.  4835),  all  persons  admitted  to  treatment  in 
the  General  Hospital  at  Fort  Bayard,  New  Mexico,  while  patients  in  said  hos- 
pital (act  of  June  12,  1906,  34  Stat.,  255),  and  all  persons  admitted  to  treat- 
ment in  the  Army  and  Navy  General  Hospital  at  Hot  Springs,  Arkansas,  while 
patients  in  said  hospital  (act  of  Mar.  3,  1909,  35  Stat.,  748),  are  by  the  statutes 
cited  made  subject  to  the  rules  and  articles  for  the  government  of  the  armies  of 
the  United  States,  but  court-martial  jurisdiction  over  them  has  rarely,  if  ever, 
been  exercised.] 


CHAPTER  11. 
COURTS-MARTIAL— CLASSIFICATION— COMPOSITION. 


Page. 

Section  I :  Classification 5 

5.  Kinds 5 

(a)  General  courts-martial 5 

(6)  Special  courts-martial 5 

(c)  Summarj^  courts-martial 5 

Section  II:  Composition 6 

6.  Who  competCLJ,  to  serve 6 

Exceptions — 

(a)  Accuser  or  witness  for  prosecution 6 

(6)  Ofiicers  excepted  by  custom 6 

7.  Number  of  members 6 

(a)  General  courts-martial 6 

Reduction  below  quorum — Report  by  judge  advocate 6 

(6)  Special  courts-martial 7 

Reduction  below  quorum 7 

(c)  Summary  courts-martial 7 

8.  "Officer"  defined 7 

9.  "In  the  military  service  of  the  United  States " 7 

(a)  Officer  suspended  from  rank 7 

(6)  Retired  officers 7 

(c)  Volunteers,  Officers'  Reserve  Corps,  persons  called,  drafted,  or 

ordered  into  service 7 

10.  Marine  officers 8 

11.  No  distinction  between  Regulars  and  other  forces 8 

12.  Rank  of  members 8 

(a)  Trial  by  inferiors  in  rank 8 

(6)  Determination  of  rank  among  Regulars  and  other  forces 8 

13.  Who  may  be  tried 8 


Section  I. 

CLASSIFICATION. 

5.  Kinds. — Courts-martial  shall  be  of  three  kinds  (A.  W.  3),  viz: 
(a)   General  courts-martial; 
(h)   Special  courts-martial;  and 
(c)   Summary  courts-martial. 

[Note. — The  classification  of  courts-martial  adopted  by  the  code  of  1916  is 
identical  with  that  made  by  the  act  of  March  2,  1913  (37  Stat.,  721),  which 
abolished  garrison  and  regimental  courts-martial  and  created  special  courts- 
martial.] 

5 


6  MANUAL  FOR  COURTS- MARTIAL. 

Section  II. 
COMPOSITION. 

6.  Who  competent  to  serve. — All  officers  in  the  military  service  of  the 
United  States,  and  officers  of  the  Marine  Corps  when  detached  for 
service  with  the  Army  by  order  of  the  President,  shall  be  com- 
petent to  serve  on  courts-martial  for  the  trial  of  any  persons  who 
may  lawfully  be  brought  before  such  courts  for  trial.     (A.  W.  4.) 

Exceptions. —  (a)  No  officer  shall  be  eligible  to  sit  as  a  member  of  a 
general  or  special  court-martial  when  he  is  the  accuser  or  a  witness 
for  the  prosecution  (A.  W.  8,  9)  ;  but  when  there  is  only  one  officer 
present  with  a  command  he  shall  be  the  summary  court-martial  of 
that  command  and  shall  hear  and  determine  cases  brought  before 
him  (A.  W.  10).  [See  chapter  8,  sec.  1,  par.  129.]  (h)  Chaplains, 
veterinarians,  dental  surgeons,  and  second  lieutenants  in  the  Quarter- 
master Corps  are  not  in  practice  detailed  as  members  of  courts- 
martial. 

7.  Number  of  members. — Courts-martial  shall  be  composed  of  the 
following  number  of  officers  (A.  W.  5,  6,  7) ,  viz : 

(a)  General  courts-martial. — Any  number  from  5  to  13,  inclusive. 

A  general  court-martial  shall  not  consist  of  less  than  13  officers  when 
that  number  can  be  convened  without  manifest  injury  to  the  service. 
(A.  W.  5.)  The  Articles  of  War  (A.  W.  5,  6)  governing  the  number 
of  members  which  may  sit  upon  a  general  or  a  special  court-martial 
are  merely  directory  to  the  officer  appointing  the  court,  and  his  de- 
cision as  to  the  number  which  can  be  convened  without  manifest  injury 
to  the  service  (within  the  maximum  and  minimum  limits  prescribed  by 
law) ,  being  a  matter  submitted  to  his  sound  discretion,  must  be  conclu- 
sive. (Martin  v,  Mott,  12  Wheaton,  35 ;  see  also  MuUan  v.  U.  S.,  140 
U.  S.,  240.)  While  a  number  less  than  five  can  not  be  organized  as  a 
general  court-martial  or  proceed  with  a  trial,  they  may  perform  such 
acts  as  are  preliminary  to  the  organization  and  action  of  the  court. 
Less  than  five  members  may  adjourn  from  day  to  day,  and  where 
five  are  present  and  one  of  them  is  challenged,  the  remaining  four 
may  determine  upon  the  sufficiency  of  the  objection.  A  court 
reduced  to  four  members  and  thereupon  adjourning  for  an  indefi- 
nite period  does  not  dissolve  itself.  The  appointing  authority  may 
at  any  time  complete  it  by  the  addition  of  a  new  member  or  mem- 
bers and  order  it  to  reassemble  for  business.  (Digest,  p.  158,  LXXV, 
B,  3),  but  if  any  evidence  has  been  taken  before  the  court  is  reduced 
below  five,  it  should  be  dissolved  and  a  new  one  ordered. 

If  for  any  reason  a  general  court-martial  is  reduced  below  five 
members  it  will  direct  the  judge  advocate  to  report  the  facts  to  the 
convening  authority  and  wait  his  orders.  The  report  by  the  judge 
advocate  will,  in  all  cases,  be  made  through  the  commanding  officer 


COURTS-MARTIAL CLASSIFICATION COMPOSITION.  7 

of  the  post,  command,  or  station  where  the  court  is  sitting,  who  will 
indorse  thereon  the  names  of  a  sufficient  number  of  available  officers 
whom  he  recommends  be  detailed  on  the  court  to  enable  it  to  proceed. 
More  than  enough  to  make  a  quorum  should  be  recommended  where 
practicable  in  order  to  provide  for  future  contingencies,  and  so  far 
as  can  be  foreseen  the  officers  recommended  should  not  be  liable  to 
challenge  in  any  case  to  be  tried.  If  there  be  no  such  officer  or  officers 
available,  the  commanding  officer  will  so  state.  This  report  will  be 
made  by  wire  whenever  deemed  advisable  in  order  to  prevent  unneces- 
sary delay  in  trying  cases.  Similar  action  will  be  taken  before  trial 
by  the  judge  advocate  and  commanding  officer  whenever  the  former 
knows  or  has  good  reason  to  believe  that  the  court  will  be  reduced 
below  a  quorum  at  the  time  of  trial.  It  is  the  duty  of  commanding 
officers  to  keep  in  touch  with  the  business  before  general  courts- 
martial  being  held  within  the  limits  of  their  commands  and  from 
time  to  time  to  take  the  initiative  in  making  recommendations  to  the 
appointing  authority  as  to  relieving  or  adding  members,  changing 
the  judge  advocate,  or  appointing  a  new  court,  and  as  to  other  mat- 
ters relating  to  such  courts,  so  that  they  may  proceed  expeditiously 
and  in  cooperation  with  other  official  business. 

(b)  Special  courts-martial. — ^Any  number  of  officers  from  three  to 
five,  inclusive. 

The  remarks  under  (a)  ante  apply  equally  to  a  special  court-mar- 
tial where  its  membership  is  reduced  below  the  minimum  required  by 
law,  except  that  in  the  case  of  special  court-martial  the  report  by  the 
judge  advocate  will  be  made  to  the  convening  authority,  who  will, 
without  unnecessary  delay,  detail  a  su-fflcient  nurriber  of  qualified 
officers  to  enable  it  to  proceed  or  appoint  a  new  court. 

(c)  Summary  courts-martial. — A  summary  court-martial  shall  con- 
sist of  one  officer.     (C.  M,  C,  M.^  No.  1,) 

8.  "  Officer"  defined. — The  word  "  officer"  when  used  in  the  Articles 
of  War  or  this  Manual  means  commissioned  officer.     (A.  W.  1.) 

9.  "  In  the  military  service  of  the  United  States." — {a)  An  officer  sus- 
pended from  rank  should  not  be  detailed  to  sit  as  a  member  of  a 
court-martial  during  the  period  of  suspension. 

(&)  A  retired  officer  may  be  assigned  with  his  consent  to  active  duty 
upon  courts-martial  in  time  of  peace  (act  of  Apr.  23,  1904,  33  Stat., 
264),  and  if  employed  on  active  duty  in  time  of  war  in  the  discretion 
of  the  President  (sec.  24,  act  of  June  3,  1916,  39  Stat.,  183),  he  is 
eligible  for  court-martial  duty.  At  other  times  he  is  not  available  for 
such  duty  except  that  when  placed  in  command  of  a  post  under  the 
act  of  August  29, 1916  (39  Stat.,  627),  or  when  assigned  to  recruiting 
duty  he  may  act  as  summary  court-martial  when  he  is  the  only  officer 
present.     (See  pars.  26  and  27.) 

(c)  Volunteers  become  eligible  for  duty  as  members  of  courts- 
martial  from  the  dates  of  their  muster  or  acceptance  into  the  military 
service  of  the  United  States  (A.  W.  2),  members  of  the  Officers' 
Reserve  Corps  ordered  to  active  service  by  the  Secretary  of  War  (sec. 


8  MANUAL  FOR   COURTS- MARTIAL. 

38,  act  of  June  3,  1916,  39  Stat.,  191),  and  all  other  officers  lawfully 
called,  drafted,  or  ordered  into,  or  to  duty  or  for  training  in,  the  said 
service,  from  the  date  they  are  required  by  the  terms  of  the  call,  draft, 
or  order  to  obey  the  same  (A.  W.  2). 

10.  Marine  officers. — ^Marine  officers  can  be  detached  for  duty  with 
the  Army  only  by  order  of  the  President  (E.  S.  1619,  1621),  and 
their  eligibility  to  sit  as  members  of  courts-martial  to  try  persons 
subject  to  military  law  continues  only  during  the  time  they  are  serv- 
ing under  such  order.  When  any  part  of  the  Marine  Corps  is  pres- 
ent with  the  Army  and  engaged  in  a  common  enterprise  with  it, 
without  an  order  of  the  President  detaching  it  for  service  with  the 
Army,  the  case  is  one  of  cooperation  and  not  of  incorporation,  and 
in  such  a  case  no  officer  of  the  Marine  Corps  can  exercise  command 
over  the  Army  any  more  than  a  naval  officer  can  when  some  part' of 
the  Navy  is  cooperating  with  the  Army,  and  the  converse  is  true  of 
Army  officers  cooperating  with  the  Marine  Corps.  (28  Op.  Atty. 
Gen.,  15.) 

11.  No  distinction  between  Regulars  and  other  forces. — ^No  distinction 
now  exists  in  the  matter  of  eligibility  for  court-martial  duty  among 
the  various  classes  of  officers  in  the  military  service  of  the  United 
States  for  the  trial  of  any  person  subject  to  military  law.  (Act  of 
Apr.  25, 1914,  38  Stat.,  348;  A.  W.  4.) 

12.  Rank  of  members. —  (a)  The  order  appointing  a  general  or  a 
special  court-martial  should  name  the  members  in  order  of  rank,  and 
they  will  sit  according  to  rank. 

In  no  case  shall  an  officer,  when  it  can  be  avoided,  be  tried  by 
officers  inferior  to  him  in  rank.  (A.  W.  16.)  This  provision  (like 
that  in  reference  to  the  number  of  members  of  a  general  or  special 
court-martial  considered  in  paragraph  7,  ante)  is  not  prohibitory  but 
directory  only  upon  the  convening  authority.  Its  effect  is  to  leave 
to  the  discretion  of  that  officer,  as  the  conclusive  authority  and  judge, 
the  determination  of  the  question  of  the  rank  of  the  members,  with 
only  the  general  instruction  that  superiors  in  rank  to  the  accused 
shall  be  selected,  so  far  as  the  exigencies  and  interests  of  the  service 
will  permit.    (MuUan  v.  U.  S.,  140  U.  S.,  240.) 

(h)  Rank  among  officers  of  the  Regular  Army,  forces  drafted  or 
called  into  the  service  of  the  United  States,  and  Volunteers  is  deter- 
mined according  to  the  rules  laid  down  in  A.  W.  119. 

13.  Who  may  be  tried. —  (a)  For  the  jurisdiction  of  general,  special, 
and  summary  courts-martial  as  to  persons  see  Chapter  IV,  Juris- 
diction. 

(h)  In  addition  to  the  persons  subject  to  military  law  enumerated 
in  Chapter  I,  Section  III,  a/nte,  the  general  court-martial  also  has 
jurisdiction  over  any  other  person  who  by  the  law  of  Avar  is  subject 
to  trial  by  military  tribunals.     (A.  W.  12 ;  see  Chap.  IV,  Jurisdiction.) 


CHAPTER  III. 
COURTS-MARTIAL— BY  WHOM  APPOINTED. 


Page. 

Section  I:  General  courts-martial 9 

14.  Authorities  enumerated,  (a)  to  (i) 9 

Exceptions — 

(1)  Appointing  authority  as  accuser  or  prosecutor 10 

(2)  Superintendent  of  Military  Academy 10 

15.  Power  of  President  to  appoint 10 

16.  Same  for  Superintendent  of  Military  Academy 10 

17.  ''Accuser "  or  " prosecutor "  defined 10 

18.  Power  to  appoint  an  attribute  of  command 11 

19.  Rank  of  appointing  authority 12 

20.  Power  of  appointing  authority — How  limited 12 

Section  II :  Special  courts-martial 12 

21.  Authorities  enumerated,  (a)  to  (i) 12 

Exception — Appointing  authority  as  accuser  or  prosecutor 12 

22.  Commanding  officer  as  accuser  or  prosecutor 12 

23.  Rank  of  appointing  authority 13 

24.  Commanding  officer  as  member ]  3 

Section  III:  Summary  courts-martial 13 

25.  Authorities  enumerated,  (a)  to  (A) 13 

26.  "When  more  than  one  officer  present 13 

27.  When  but  one  officer  present 11 

28.  ''Detachment"  defined 14 

29.  Power  of  brigade  commanders 14 

Section  IV:  Judge  Advocate. 

30.  Power  to  appoint 15 

31.  Duties 15 


Section  I. 
GENERAL  COURTS-MARTIAL. 

14.  Authorities  enumerated. — General   courts-martial  may  be  ap- 
pointed by  the  following  authorities  (A.  W.  8),  viz : 
(a)  The  President  of  the  United  States. 
(h)  The  commanding  officer  of  a  territorial  division. 

(c)  The  commanding  officer  of  a  territorial  department. 

(d)  The  Superintendent  of  the  Military  Academy. 

(e)  The  commanding  officer  of  an  army. 

(/)  The  commanding  officer  of  an  army  corps. 


10  MANUAL  FOR  COURTS-MABTIAL. 

(g)  The  commanding  officer  of  a  (tactical)  division. 

(h)  The  commanding  officer  of  a  separate  brigade. 

(^)  The  commanding  officer  of  any  district  or  of  any  force  or 
body  of  troops,  when  empowered  by  the  President  to  do  so. 

Exceptions. — (1)  When  any  of  the  foregoing  commanders  is  the 
accuser  or  the  prosecutor  of  the  person  or  persons  to  be  tried,  the 
court  shall  be  appointed  by  superior  competent  authority;  (2)  the 
Superintendent  of  the  Military  Academy  is  not  empowered  to  con- 
vene a  general  court-martial  for  the  trial  of  an  officer.     (A.  W.  12.) 

[Note. — For  the  authority  to  appoint  general  court-martial  in  the  National 
Guard  not  in  the  service  of  the  United  States,  see  sec.  103  act  of  June  3,  1916, 
39  Stat,  208;  Appendix  2,  post.^ 

15.  Power  of  the  President  to  appoint. — In  addition  to  the  general 
statutory  authority  conferred  upon  the  President  by  A.  W.  8  to  ap- 
point general  courts-martial  he  is  also  empowered  to  do  so  by  virtue 
of  being  Commander  in  Chief  of  the  Army  (Swain  v.  U.  S.,  165  XJ.  S., 
663)  and  in  the  particular  case  provided  for  by  R.  S.  1230. 

[Note. — When  any  officer,  dismissed  by  order  of  the  President,  makes,  in 
writing,  an  application  for  trial,  setting  forth,  under  oath,  that  he  has  been 
wrongfully  dismissed,  the  President  shall,  as  soon  as  the  necessities  of  the 
service  may  permit,  convene  a  court-martial  to  try  such  officer  on  the 
charges  on  which  he  shall  have  been  dismissed.  And  if  a  court-martial  is  not 
so  convened  within  six  months  from  the  presentation  of  such  application  for 
trial,  or  if  such  court,  being  convened,  does  not  award  dismissal  or  death  as 
the  punishment  of  such  officer,  the  order  of  dismissal  by  the  President  shall  be 
void.     (R.  S.  1230.)     See  also  A.  W.  118.] 

16.  Superintendent  of  the  Military  Academy. — ^The  Superintendent  of 
the  Military  Academy  was  authorized  by  R.  S.  1326  to  convene  gen- 
eral courts-martial  for  the  trial  of  cadets  only;  the  act  of  March  2, 
1913  (37  Stat.,  T22),  extended  this  authority  to  include  all  persons 
(except  officers)  subject  to  military  law  under  his  command.  This 
authority  was  continued  in  the  Code  of  1916.     (A.  W.  8,  12.) 

17.  "Accuser  "  or  "  prosecutor." — Whether  the  commander  who  con- 
vened the  court  is  to  be  regarded  as  the  "accuser  or  prosecutor" 
where  he  has  had  to  do  with  the  preparing  and  preferring  of 
the  charges,  is  mainly  to  be  determined  by  his  anvmus  in  the  mat- 
ter. He  may,  like  any  other  officer,  initiate  an  investigation  of  an 
officer's  conduct  and  formally  prefer,  as  his  individual  act,  charges 
against  such  officer ;  or  by  reason  of  a  personal  interest  adverse  to  the 
accused  he  may  adopt  practically  as  his  own  charges  initiated  by  an- 
other; in  which  cases  he  is  clearly  the  accuser  or  prosecutor  within 
the  article.  On  the  other  hand,  it  is  his  duty  to  determine,  when  the 
facts  are  brought  to  his  knowledge,  whether  an  officer  within  his  com- 
mand charged  with  a  military  offense  shall  in  the  interest  of  disci- 
pline and  for  the  good  of  the  service  be  brought  to  trial.  To  this 
end  he  may  formally  refer  or  revise  or  cause  to  be  revised  and  then 
formally  referred,  charges  preferred  against  such  officer  by  another; 


COUKTS-MARTIAIi BY   WHOM   APPOINTED.  11 

or  when  the  facts  of  an  alleged  offense  are  communicated  to  him,  he 
may  direct  a  suitable  officer,  as  a  member  of  his  staff,  or  the  proper 
commander  of  the  accused,  to  investigate  the  matter,  formulate  and 
prefer  such  charges  as  the  facts  may  warrant,  and  having  been  sub- 
mitted to  him,  he  may  revise  and  refer  them  for  trial  as  in  other 
cases ;  all  this  he  may  do  in  the  proper  performance  of  his  official  duty 
without  becoming  the  accuser  or  prosecutor  in  the  case.  Of  course,  he 
can  not  be  deemed  such  accuser  or  prosecutor  where  he  causes  charges 
to  be  preferred  and  proceeds  to  convene  the  court  by  direction  of  the 
Secretary  of  War  or  a  competent  military  superior.  (Digest,  p.  154, 
LXXII,  I,  1.)  It  is  not  essential  that  the  commander  who  convenes 
the  court-martial  for  the  trial  of  an  officer  should  sign  the  charges 
to  make  him  the  "accuser  or  prosecutor"  within  the  meaning  of  this 
article.  Nor  is  the  fact  that  they  have  been  signed  by  another  con- 
clusive on  the  question  whether  the  convening  commander  is  the 
actual  accuser  or  prosecutor.  The  objection  that  such  commander  is 
such,  calls  in  question  the  legal  constitution  of  the  court,  and  while 
such  objection,  if  known  or  believed  to  exist,  should  regularly  be  in- 
terposed at  or  before  the  arraignment  it  may  be  taken  during  the  trial 
at  any  stage  of  the  proceedings.  If  not  admitted  by  the  prosecution 
to  exist,  the  accused  is  entitled  to  prove  it  like  any  other  issue.  (For 
decisions  as  to  when  the  convening  authority  is  the  accuser  or  prose- 
cutor, see  Digest,  p.  155,  LXXII,  I,  1,  a;  p.  155,  LXXII,  I,  2;  p. 
156,  LXXII,  I,  3,  a;  p.  156,  LXXII,  I,  3  a  (1).) 

18.  Power  to  appoint  an  attribute  of  command. — ^As  the  authority  to 
appoint  general  courts-martial  is  an  attribute  of  com/mand,  a  com- 
manding officer  can  not  delegate  to  another  officer  such  as  his  adju- 
tant or  any  other  staff  officer  or  subordinate  the  authority  to  appoint 
a  court,  detail  an  additional  member,  or  relieve  a  member.  If  the 
authority  to  appoint  a  general  court-martial  is  vested  by  law  in  a 
commanding  officer  he  retains  that  authority,  wherever  he  may  be, 
so  long  as  he  continues  to  be  such  commanding  officer.  In  the  absence 
of  orders  or  legislation,  personal  presence  within  the  territorial  limits 
of  his  department  is  not  essential  to  the  validity  of  commands  given 
by  a  department  commander  to  be  executed  within  the  department. 
Therefore  he  may  appoint  a  court-martial  while  absent  from  his 
department  if  he  continues  to  exercise  command.  But  a  depart- 
ment commander  detached  and  absent  from  his  command  for  any 
considerable  period  by  reason  of  having  received  a  leave  of  absence 
(whether  of  a  formal  or  informal  character) ,  or  having  been  placed 
.upon  a  distinct  and  separate  duty,  is  held  to  be  in  a  status  incom- 
patible with  a  full  and  legal  exercise  of  such  authority  and  therefore 
incompetent  during  such  absence  to  order  a  general  court-martial 
as  department  commander,  even  though  no  other  officer  has  been 


12  MANUAL  FOR  COURTS-MABTIAL. 

assigned    or  has   succeeded   to   the   command    of  the   department. 
(Digest,  p.  153,  LXXII,  A.) 

19.  Rank  of  appointing'  authority — The  power  of  the  various  com- 
manders enumerated  in  paragraph  14,  supra^  to  appoint  general 
courts-martial  is  independent  of  their  rank,  but  no  officer  other  than 
those  enumerated  can  appoint  a  general  court-martial  no  matter 
what  his  rank  may  be.  An  officer  who  succeeds  to  any  command 
or  duty  stands  in  regard  to  his  duties  in  the  same  situation  as  his 
predecessor.  (A.  R.  IT.)  In  the  event  of  the  death  or  disability 
of  the  permanent  commander  of  a  territorial  department,  or  his 
temporary  absence  from  the  limits  of  his  command,  the  senior  line 
officer  present  and  on  duty  therein  will  exercise  the  command  of  the 
department,  unless  otherwise  ordered,  until  relieved  by  proper  au- 
thority.    (A.  E.  196.) 

20.  Power  of  appointing  authority,  how  limited. — An  officer  who  has 
power  to  .appoint  a  court-martial  may  control  its  existence,  dissolve 
it,  and  determine  the  cases  to  be  referred  to  it  for  trial,  but  he  can 
not  control  the  exercise  by  the  court  of  powers  vested  in  it  by  law. 

Section  II. 
SPECIAL  COURTS-MARTIAL. 

21.  Authorities  enumerated. — Special  courts-martial  may  be  ap- 
pointe.d  by  the  following  authorities  (A.  W.  9),  viz: 

{a)  The  commanding  officer  of  a  district. 

(b)  The  commanding  officer  of  a  garrison. 

{g)  The  commanding  officer  of  a  fort. 

{d)  The  commanding  officer  of  a  camp. 

{e)  The  commanding  officer  of  any  place  other  than  («),  (5),  (c), 
and  (d)  where  troops  are  on  duty. 

(/)  The  commanding  officer  of  a  brigade. 

{g)  The  commanding  officer  of  a  regiment. 

(A)  The  commanding  officer  of  a  detached  battalion. 

{i)  The  commanding  officer  of  any  other  detached  command. 

Exception. — ^When  any  one  of  the  foregoing  commanding  officers 
is  the  accuser  or  the  prosecutor  of  the  person  or  persons  to  be  tried, 
the  court  shall  be  appointed  by  superior  authority. 

When  any  superior  authority  deems  it  desirable,  he  may  appoint 
a  special  court-martial  for  any  part  of  his  command. 

[Note. — For  the  authority  to  appoint  special  courts-martial  in  the  National 
Guard  not  in  the  service  of  the  United  States,  see  sec.  104,  act  of  June  3,  1316, 
39  Stat,  208;  Appendix  2,  post.'] 

22.  Commanding  officer  as  "  accuser  or  prosecutor." — The  rules  laid 
down  in  Section  I,  paragraph  IT,  supra^  for  determining  when  a  com- 
mander is  the  accuser  or  prosecutor  apply  equally  to  trials  by  special 


COUBTS-MAKTIAL BY   WHOM   APPOINTED.  13 

courts-martial.  When  a  superior  appoints  a  court  because  of  such 
disqualification  on  the  part  of  a  subordinate  commanding  officer,  he 
will  specify  in  the  order  the  names  of  the  person  or  persons  to  be 
tried,  and  the  court  will  adjourn  sine  die  upon  the  completion  of  the 
last  case  which  it  is  ordered  to  try. 

23.  Rank  of  appointing  authority. — As  in  the  case  of  general  courts- 
martial,  the  test  of  the  power  to  appoint  a  special  court-martial  is 
whether  the  officer  is  one  of  the  commanders  designated  in  A.  W.  9. 
Such  authority  is  an  incident  of  his  power  to  command,  and  is  in- 
dependent of  his  rank. 

24.  Commanding  officer  as  member. — When  but  two  officers  in  addition 
to  the  commanding  officer  are  available  for  detail  on  a  special  court- 
martial,  the  commanding  officer  will  not  detail  himself  as  a  member 
of  such  court.  In  such  a  case,  if  superior  authority  desires  to  ap- 
point a  special  court-martial  for  such  command,  the  commanding 
officer,  if  otherwise  eligible,  may  be  appointed  as  a  member  thereof. 

Section  III. 
SUMMARY  COURTS-MARTIAL. 

25.  Authorities  enumerated- — Summary  courts-martial  may  be  ap- 
pointed by  the  following  authorities  (A.  W.  10),  viz: 

{a)  The  commanding  officer  of  a  garrison. 

{h)  The  commanding  officer  of  a  fort. 

{c)  The  commanding  officer  of  a  camp. 

{d)  The  commanding  officer  of  any  other  place  not  enumerated  in 
(a),  (5),  and  (c)  where  troops  are  on  duty. 

{e)  The  commanding  officer  of  a  regiment. 

(/)  The  commanding  officer  of  a  detached  battalion. 

{g)  The  commanding  officer  of  a  detached  company. 

{h)  The  commanding  officer  of  any  other  detachment  not  enumer- 
ated in  (/)  and  {g). 

A  summary  court-martial  may  in  any  case  be  appointed  by  su- 
perior authority  when  by  the  latter  deemed  desirable. 

[Note. — For  the  authority  to  appoint  summary  courts-martial  in  the  National 
Guard  not  in  the  service  of  the  United  States,  see  sec.  105,  act  of  June  3,  1916, 

39  Stat.,  208;  Appendix  2,  post.^ 

26.,  When  more  than  one  officer  present. — ^When  more  than  one  officer 
is  present  the  summary  court-martial  will  be  appointed  from  staff 
officers  or  available  line  officers  junior  to  the  commanding  officer. 
The  commanding  officer  will  not  in  such  cases  designate  himself  as 
the  summary  court-martial.  The  senior  officer  on  duty  at  a  recruit- 
ing station  is  a  "  commanding  officer  "  in  the  sense  of  the  last  pre- 
ceding sentence  when  there  is  another  officer  present  at  the  same 
station,  even  though  the  latter  may  be  serving  at  an  auxiliary  or 
branch  station.     (Bui.  46,  War  Dept.,  Oct.  24,  1914.) 


14  MANUAL  FOB  COURTS-MABTIAL. 

27.  When  but  one  officer  present. — When  but  one  officer  is  present 
with  a  command  he  shall  be  the  summary  court-martial  of  that  com- 
mand and  shall  hear  and  determine  cases  brought  before  him.  (A.  W. 
10.)  In  such  a  case,  no  order  appointing  the  court  will  be  issued 
but  the  officer  will  enter  on  the  record  that  he  is  the  "only  officer 
present  with  the  command."     (As  to  retired  officers,  see  par.  9,  h.) 

28.  "  Detachment "  defined. — ^A  battalion  or  other  unit  is  "  detached  " 
when  isolated  or  removed  from  the  immediate  disciplinary  control 
of  a  superior  of  the  same  branch  of  the  service  in  such  a  manner  as  to 
make  its  commander  primarily  the  one  to  be  looked  to  by  superior 
authority  as  the  officer  responsible  for  the  administration  of  the  dis- 
cipline of  the  enlisted  men  composing  the  same.  The  term  is  used 
in  a  disciplinary  sense,  and  is  not  necessarily  limited  to  what  con- 
stitutes detachment  in  a  physical  or  tactical  sense.  The  commanding 
officers  of  such  units  as  field  signal  battalions,  aero  squadrons,  field 
bakeries,  and  ammunition,  engineer,  or  sanitary  trains,  if  their  re- 
spective commands  are  independent,  except  in  so  far  as  they  consti- 
tute parts  of  a  division,  and  if  their  commanders  are  responsible 
directly  to  the  division  commander  for  the  maintenance  of  discipline 
in  those  commands,  are  competent  to  appoint  summary  courts  for 
the  same,  subject  to  the  power  of  the  division  commander  to  appoint 
summary  courts  for  all  subordinate  organizations  and  detachments 
under  his  command  if  by  him  deemed  advisable. 

So  likewise  the  various  service  schools,  such  as  the  Mounted  Service 
School  at  Fort  Riley,  though  they  may  be  located  within  the  imme- 
diate limits  of  higher  commands,  constitute  "detachments"  within 
the  meaning  of  A.  W.  10,  and  the  commandants  thereof  have  power 
to  appoint  summary  courts-martial  for  the  trial  of  enlisted  men 
connected  with  such  schools,  subject  to  the  right  of  the  commanding 
officer  of  the  garrison  or  fort  to  appoint  such  courts  when  by  him 
deemed  desirable.     (Bui.  13,  War  Dept.,  1913,  p.  7.) 

29.  Power  of  brigade  commanders. — A  brigade  commander  is  respon- 
sible for  the  instruction,  tactical  efficiency  and  preparedness  for  war 
service  of  his  brigade.  (A.  R.  194.)  If  the  brigade  is  serving  at  one 
garrison  or  post  he  has,  by  virtue  of  his  power  as  such  garrison  or 
post  commander,  authority  to  retain  within  himself  the  appointing 
power  of  all  summary  courts  within  his  command,  but  if  he  does  not 
exercise  the  authority  which  is  vested  in  him  by  statute  he  allows  the 
appointing  power,  including  the  power  of  review,  to  pass  to  regi- 
mental (and  detachment)  commanders.  (Digest,  p.  580,  XVI,  E,  7.) 
If  the  brigade  is  acting  as  a  tactical  unit  in  the  field,  he  may  as  su- 
perior authority,  appoint  summary  courts-martial  for  his  command 
whenever  he  deems  it  desirable,  but  such  authority  will  ordinarily  be 
exercised  jby  the  regimental  commanders. 


COUBTS-MARTIAL — BY   WHOM   APPOINTED.  15 

Section  IV. 
JUDGE  ADVOCATE. 

30.  Power  to  appoint. — For  each  general  or  special  court-martial  the 
authority  appointing  the  court  shall  appoint  a  judge  advocate,  and 
for  each  general  court-martial  one  or  more  assistant  judge  advocates 
when  necessary.  (A.  W.  11.) 

31.  Duties  of  judge  advocate  and  assistant  judge  advocates. — For  dis- 
cussion of  the  duties  of  the  judge  advocate  and  his -assistants  see 
Chapter  VII,  Sections  II  and  III. 


CHAPTEE  ly. 
COURTS-MARTIAL— JURISDICTION. 


Page. 

Section  I :  Jurisdiction  in  general 17 

32.  Jurisdiction  defined 17 

33.  Courts-martial  not  part  of  Federal  judicial  system 18 

34.  Conditions  necessary  to  show  jurisdiction 18 

35.  Procedure  when  military  and  civil  jurisdiction  concurrent 19 

36.  Can  not  be  divested  by  act  of  accused 20 

37.  Not  territorial 20 

38.  When  terminated — Rule  stated 20 

Exceptions  (a)  to  (e) 20 

Section  II :  Jurisdiction  of  general  courts-martial 21 

39.  Persons  and  offenses 21 

40.  Limits  of  punishment — Exception 21 

Section  III:  Jurisdiction  of  special  courts-martial 22 

41.  Persons  and  offenses 22 

42.  Limits  of  punishment 22 

Section  IV:  Jurisdiction  of  summary  courts-martial 22 

43.  Persons  and  offenses 22 

44.  Limits  of  punishment 23 

Section  V:  Jurisdiction  of  other  military  tribunals 23 

45.  When  concurrent  with  courts-martial 23 


Section  I. 

JURISDICTION  IN  GENERAL. 

32.  Jurisdiction  defined. — ^The  jurisdiction  of  a  court-martial  is  its 
power  to  try  and  determine  cases  legally  referred  to  it  and,  in  case 
of  a  finding  of  guilty,  to  award  a  punishment  for  the  offense  within 
its  prescribed  limits.  Being  courts  of  special  and  limited  jurisdiction 
their  organization,  powers,  and  mode  of  procedure  must  conform  to 
all  the  statutory  provisions  relating  to  their  jurisdiction.  (For  the 
source  and  kinds  of  military  jurisdiction  and  persons  subject  to  mili- 
tary law  see  Chap.  I,  Sees.  I  and  III.) 

91487°— 17 3  -  17 


18  MANUAL  FOB  COURTS- MARTIAL. 

33.  Courts-martial  not  part  of  Federal  judicial  system. — ^While  courts- 
martial  have  no  part  of  the  jurisdiction  set  apart  under  the  article 
of  the  Constitution  which  relates  to  the  judicial  power  of  the  United 
States  they  have  an  equally  certain  constitutional  source.  They  are 
established  under  the  constitutional  power  of  Congress  to  make  rules 
for  the  government  and  regulation  of  the  land  forces  of  the  United 
States,  and  are  recognized  in  the  provisions  of  the  fifth  amendment 
expressly  exempting  "cases  arising  in  the  land  and  naval  forces" 
from  the  requirement  as  to  presentment  and  indictment  by  grand 
jury.  They  are  tribunals  appointed  by  military  orders  issued  under 
authority  of  law.  The  power  to  appoint  them,  as  well  as  the  power 
to  act  upon  their  proceedings,  is  vested  by  law  in  certain  comimand- 
ing  officers.  Their  jurisdiction  is  entirely  crirmruil.  They  have  no 
power  to  adjudge  damage  for  personal  injuries  or  private  wrongs, 
nor  to  collect  private  debts.  Their  judgments  upon  subjects  within 
their  limited  jurisdiction,  when  duly  approved  or  confirmed,  are  as 
legal  and  valid  as  those  of  any  other  tribunals.  No  appeal  can  be 
taken  from  them,  nor  can  they  be  set  aside,  or  reviewed  by  the  courts 
of  the  United  States,  nor  of  any  State,  but  United  States  courts  may, 
on  writ  of  habeas  corpus,  inquire  into  the  legality  of  detention  of  a 
.person  held  by  military  authority,  at  any  time,  either  before  or 
during  trial  or  while  serving  sentence,  and  will  order  him  discharged 
if  it  appears  to  the  satisfaction  of  the  court  that  any  of  the  statutory 
requirements  conferring  jurisdiction  have  not  been  fulfilled.  Their 
sentences  have  in  themselves  no  legal  effect  until  they  have  received 
the  approval  or  confirmation  of  the  proper  commanding  officer. 
With  such  approval  or  confirmation,  however,  their  sentences  become 
operative  and  are  as  effective  as  the  sentences  of  civil  courts  having 
criminal  jurisdiction,  and  are  entitled  to  the  same  legal  consideration. 

34.  Conditions  necessary  to  show  jurisdiction. — The  jurisdiction  of 
every  court-martial,  and  hence  the  validity  of  each  of  its  judgments, 
is  conditioned  upon  these  indispensable  requisites: 

{a)  That  it  was  convened  by  an  officer  empowered  by  statute  to 
appoint  it. 

{h)  That  the  persons  who  sat  upon  the  court  were  legally  com- 
petent to  do  so. 

(<?)  That  the  court  thus  constituted  was  invested  by  the  acts  of 
Congress  with  power  to  try  the  person  and  the  offense  charged. 

{d)  That  its  sentence  was  in  accordance  with  law. 

"Persons,  then,  belonging  to  the  Army  and  the  Navy  are  not  sub- 
ject to  illegal  or  irresponsible  courts-martial,  when  the  law  for  con- 
vening them  and  directing  their  proceedings  of  organization  and  for 
trial  have  been  disregarded.  In  such  cases,  everything  which  may 
be  done  is  void — not  voidable,  but  void ;  and  civil  courts  have  never 
failed,  upon  a*proper  suit,  to  give  a  party  redress,  who  has  been 


COURTS-MARTIAL — ^JURISDICTION-.  19 

injured  by  a  void  process  or  void  judgment.  *  *  *  When  we 
speak  of  proceedings  in  a  cause,  or  for  the  organization  of  the  court 
and  for  trials,  we  do  not  mean  mere  irregularity  in  practice  on  the 
trial,  or  any  mistaken  rulings  in  respect  to  evidence  or  law,  but  a  dis-i 
regard  of  the  essentials  required  by  the  statute  under  which  the 
court  has  been  convened  to  try  and  to  punish  an  offender  for  an 
imputed  violation  of  the  law."  (Dynes  v.  Hoover,  61  U.  S.,  81 ;  see 
also  Deming  v.  McClaughry,  113  Fed.  Rep.,  650;  McClaughry  v. 
Deming,  186  U.  S.,  63;  Mullan  v.  United  States,  140  U.  S.,  240;  Ex 
parte  Tucker,  212  Fed.  Rep.,  569 ;  and  A.  W.  37.) 

35.  Procedure  when  military  and  civil  jurisdiction  concurrent. — Courts- 
martial  have  exclusive  jurisdiction  to  try  persons  subject  to  military 
law  for  all  purely  military  crimes  and  offenses ;  they  have  concurrent 
jurisdiction  with  the  proper  civil  courts  to  try  such  persons  for 
civil  crimes  and  offenses  denounced  and  punished  under  A.  W.  92, 
93,  94,  and  96.  (For  limitation  as  to  the  crimes  of  murder  and 
rape,  see  A.  W.  92.)  In  accordance  with  a  principle  of  comity  as 
between  the  civil  and  military  tribunals  in  cases  of  concurrent 
jurisdiction  the  jurisdiction  which  first  attaches  in  a  particular  case 
is  entitled  to  proceed  to  its  termination.  This  is,  however,  not  an 
inflexible  rule  and  need  not  govern  the  action  of  the  military  authori- 
ties in  the  case  of  an  accused  person  demanded  by  the  civil  authorities 
to  answer  for  an  offense  which  is  primarily  one  against  the  civil 
community. 

When  any  person  subject  to  military  law,  except  {a)  one  who  is 
held  by  the  military  authorities  to  answer,  or  {h)  who  is  awaiting 
trial,  or  (<?)  result  of  trial,  or  {d)  who  is  undergoing  sentence  for  a 
crime  or  offense  punishable  by  the  Articles  of  War,  is  accused  of  a 
crime  or  offense  committed  within  the  geographical  limits  of  the 
States  of  the  Union  and  the  District  of  Columbia,  and  punishable 
by  the  laws  of  the  land,  the  comimanding  officer  is  required,  except 
in  time  of  war^  upon  application  duly  made,  to  use  his  utmost  en- 
deavor to  deliver  over  such  accused  person  to  the  civil  authorities, 
or  to  aid  the  officers  of  justice  in  apprehending  and  securing  him,  in 
order  that  he  may  be  brought  to  trial.  Any  commanding  officer  who 
upon  such  application  refuses  or  willfully  neglects,  except  in  time 
of  war,  to  deliver  over  such  accused  person  to  the  civil  authorities 
or  to  aid  the  officers  of  justice  in  apprehending  and  securing  him 
shall  be  dismissed  from  the  service  or  suffer  such  other  punishment 
as  a  court-martial  may  direct. 

When,  under  the  provisions  of  this  article,  delivery  is  made  to 
the  civil  authorities  of  an  offender  undergoing  sentence  of  a  court- 
martial,  such  delivery,  if  followed  by  conviction,  shall  be  held  to 
interrupt  the  execution  of  the  sentence  of  the  court-martial,  and 
the  offender  shall  be  returned  to  military  custody,  after  having 


20  MANUAL  FOB  COURTS-MAKTTAL. 

answered  to  the  civil  authorities  for  his  offense,  for  the  completion 
of  the  said  court-martial  sentence.  (A.  W.  74.)  When  offenses 
against  the  peace  and  good  order  of  civil  communities  are  committed 
by  persons  subject  to  military  law,  the  proper  military  authorities 
will  be  prompt  in  the  preferring  of  charges  and  the  arraignment 
of  offenders,  having  due  regard  for  arrangements  existing  for  the 
purpose  of  securing  between  the  authorities  of  the  two  jurisdictions, 
civil  and  military,  mutual  aid  and  cooperation  in  the  administration 
of  justice.  In  such  cases,  if,  after  charges  are  preferred,  the  officer 
competent  to  order  trial  by  the  proper  court-martial  deems  it  inad- 
visable to  bring  the  case  to  trial,  he  will  hold  the  offender  and  for- 
ward the  charges,  with  his  views  thereon,  to  The  Adjutant  General 
of  the  Army. 

36.  Can  not  be  divested  by  act  of  accused. — A  court-martial  having 
once  duly  assumed  jurisdiction  of  a  case,  can  not,  by  any  wrongful 
act  of  the  accused,  be  ousted  of  its  authority  or  discharged  from  its 
duty  to  proceed  fully  to  try  and  determine  according  to  law  and  its 
oath.  Thus  the  fact  that,  after  arraignment  and  during  the  trial,  the 
accused  has  escaped  from  military  custody  furnishes  no  ground  for 
not  proceeding  to  a  finding,  and,  in  the  event  of  conviction,  to  a 
sentence,  in  the  case;  and  the  court  may  and  should  find  and  sentence 
as  in  any  other  case.  During  such  absence  it  is  proper  for  his  counsel 
to  continue  to  represent  him  in  all  respects  as  though  present. 

37.  Not  territorial. — Military  jurisdiction  is  not  territorial.  It  ex- 
tends as  to  persons  legally  subject  to  it  to  offenses  committed  by  them 
in  any  place  whatsoever,  whether  within  or  beyond  the  territorial 
jurisdiction  of  the  United  States. 

38.  When  terminated — Rule  stated. — The  jurisdiction  of  courts-mar- 
tial over  officers,  cadets,  and  soldiers  ordinarily  ends  when  they 
become  separated  from  the  service.  The  •  following  are,  however, 
exceptions  to  this  general  rule: 

(a)  If  any  person,  being  guilty  of  any  of  the  offenses  of  fraud, 
embezzlement,  etc.,  against  the  United  States,  while  in  the  military 
service  of  the  United  States,  receives  his  discharge  or  is  dismissed 
from  the  service,  he  shall  continue  to  be  liable  to  be  arrested  and  held 
for  trial  and  sentence  by  a  court-martial  in  the  same  manner  and  to 
the  same  extent  as  if  he  had  not  received  such  discharge  nor  been 
dismissed.     (A.  W.  94.) 

(h)  When  any  officer,  dismissed  by  order  of  the  President,  makes, 
in  writing,  an  application  for  trial,  setting  forth,  under  oath,  that 
he  has  been  wrongfully  dismissed,  the  President  shall,  as  soon  as  the 
necessities  of  the  service  may  permit,  convene  a  court-martial  to  try 
such  officer  on  the  charges  on  which  he  shall  have  been  dismissed, 
and  if  a  court-martial  is  not  so  convened  within  six  months  from  the 
date  of  making  of  such  application  for  trial,  or  if  such  court,  being 


COURTS-MARTIAL JURISDICTION.  21 

convened,  does  not  award  dismissal  or  death  as  the  punishment  of 
such  officer,  the  order  of  dismissal  by  the  President  shall  be  void. 
(R.  S.  1230.) 

[Note. — In  time  of  peace  no  officer  shall  be  dismissed  except  in  pursuance  o^ 
the  sentence  of  a  court-martial  or  in  mitigation  thereof.     (A.  W.  118.)  ] 

(e)  All  persons  under  sentence  adjudged  by  courts-martial  remain 
subject  to  military  lav^,  while  under  such  sentence.     (A.  W.  2.) 

(d)  Where  a  soldier  obtains  his  discharge  by  fraud,  the  discharge 
may  be  canceled  and  the  soldier  arrested  and  returned  to  military 
control.  He  may  also  be  required  to  serve  out  his  enlistment  and 
may  be  tried  for  his  fraud.     (Digest,  p.  457,  XVI,  A.  3.) 

(e)  An  honorable  discharge  releases  from  the  particular  contract 
and  term  of  enlistment  to  which  it  relates,  and  does  not  therefore 
relieve  the  soldier  from  the  consequences  of  a  desertion  committed 
during  a  prior  enlistment.  (Digest,  p.  462,  XXII,  A.)  A  dishonor- 
able discharge  does  not  relate  to  any  particular  contract  or  term  of 
enlistment;  it  is  a  discharge  from  the  military  service  as  a  punish- 
ment— a  complete  expulsion  from  the  Army — and  covers  all  unex- 
pired enlistments.  A  soldier  thus  dishonorably  discharged  can  not 
be  made  amenable  for  a  desertion  or  other  military  offense  committed 
under  a  prior  enlistment  except  as  provided  in  A.  W.  94.  Nor  would 
a  subsequent  enlistment  after  such  dishonorable  discharge  operate  to 
revive  the  amenability  of  the  soldier  for  such  offenses.  (Digest,  p. 
462,  XXII,  B.) 

[Note. — For  an  offense  committed  prior  to  the  expiration  of  his  term  of  en- 
listment, a  soldier  may  be  held  in  the  service  and  tried  after  the  expiration  of 
his  term.  So,  also,  a  soldier  may  be  tried  for  offenses  committed  while  making 
good  time  lost  through  desertion,  through  absence  without  leave,  through  dis- 
ease or  injury,  the  result  of  his  own  misconduct,  etc.,  under  A.  W.  107.] 

Section  II. 
JURISDICTION  OF  GENERAL  COURTS-MARTIAL. 

39.  Persons  and  offenses — General  courts-martial  have  power  (A.  W. 
12)  to  try— 

(a)  Any  person  subject  to  military  law,  for 

(h)  Any  crime  or  offense  made  punishable  by  the  Articles  of  War. 

[Note. — No  officer  sliall  be  brought  to  trial  before  a  general  court-martial 
appointed  by  the  Superintendent  of  the  Military  Academy.     (A.  W.  12.)] 

In  addition  they  have  power  to  try — 

{c)  Any  person  other  than  (a)  ahove,  who  by  the  law  of  war  is 

subject  to  trial  by  military  tribunals,  for 

(d)   Any  crime  or  offense  in  violation  of  the  law  of  war. 

40.  Limits  of  punishment — Exception. — Punishment  upon  conviction 
is  discretionary  with  a  general  court-martial,  except — 

(a)  When  mandatory  under  the  law,  or 

(h)  When  limited  by  order  of  the  President  under  A.  W.  45;  in 
addition. 


22  MANUAL  FOR  COURTS-MARTIAL. 

(c)  The  death  penalty  can  be  imposed  only  when  specifically 
authorized. 

[Note. — The  death  penalty  is  mandatory  in  the  case  of  spies  (A.  W,  82)  ;  dis- 
missal is  mandatory  for  conduct  unbecoming  an  officer  and  gentleman  (A.  W. 
95)  ;  either  death  or  imprisonment  for  life  is  mandatory  for  murder  and  rape 
(A.  W.  92)  ;  punishment  is  mandatory  in  part  and  discretionary  in  part  for 
false  muster  (A.  W.  56),  false  returns  (A.  W.  57),  officer  drunk  on  duty  in  time 
of  war  (A.  W.  85),  and  personal  interest  in  the  sale  of  provisions  (A.  W.  87). 
For  limits  of  punishment  fixed  by  the  President  under  A.  W.  45,  see  Chapter 
XIII,  post,  Punishments.] 

Section  III. 

JURISDICTION  OF  SPECIAL  COURTS-MARTIAL. 

41.  Persons  and  offenses. — Special  courts-martial  shall  have  power 
(A.  W.  13)  to  try— 

(1)  Any  person  subject  to  military  law,  except — 
(a)  An  officer; 

(h)  Any  person  subject  to  military  law  belonging  to  a  class  oi 
classes  excepted  by  the  President,  for 

(2)  Any  Grime  or  offense   (not  capital)  made  punishable  by  the 

Articles  of  War. 

[Note. — Cadets  and  soldiers  holding  a  certificate  of  eligibility  for  promotion 
are  excepted  from  the  jurisdiction  of  Special  Courts-martial.] 

The  following  are  capital  crimes  and  offenses  under  the  Articles  of 
War,  viz : 

(1)  At  all  times, —  {a)  Assaulting  or  disobeying  a  superior  officer 
(A.  W.  64)  ;  (h)  mutiny  or  sedition  (A.  W.  66)  ;  {c)  failure  to  sup- 
press mutiny  or  sedition  (A.  W.  67). 

{2)  War  offenses. —  (a)  Desertion  (A.  W.  58);  (&)  advising  or 
aiding  another  to  desert  (A.  W.  59) ;  {c)  misbehavior  before  the 
enemy  (A.  W.  75) ;  {d)  subordinates  compelling  commander  to 
surrender  (A.  W.  76)  ;  {e)  improper  use  of  countersign  (A.  W.  77) ; 
(/)  forcing  a  safeguard  (A.  W.  78) ;  {g)  relieving,  corresponding 
with,  or  aiding  the  enemy  (A.  W.  81)  ;  (A)  spies  (A,  W.  82)  ;  (i) 
misbehavior  of  sentinel  (A.  W.  86).     (<7.  M.  C,  M.,  No,  1,) 

42.  Limits  of  punishment. — A  special  court-martial  shall  not  have 
power  to  adjudge — 

{a)  Dishonorable  discharge,  nor 

(&)   Confinement  in  excess  of  six  months,  nor 

{c)  Forfeiture  of  more  than  six  months'  pay. 

[Note. —  {a)  Reduction  to  the  ranks  in  the  case  of  noncommissioned  officers 
and  ( h )  reduction  in  classification  in  the  cases  of  first-class  privates  are  within 
the  limits  of  the  punishing  power  of  special  courts-martial.  (Act  of  Mar.  2, 
1913,  37  Stat.,  722.)] 

Section  IV. 

JURISDICTION    OF    SUMMARY    COURTS-MARTIAL. 

43.  Persons  and  offenses. — Summary  courts-martial  shall  have  power 
(A.  W.  M)  to  try— 

(1)  Any  person  subject  to  military  law,  except — 
{a)  An  officer; 


COUKTS-MARTIAL JURISDICTION.  23 

(5)  A  cadet; 

(c)  A  soldier  holding  the  privilege  of  a  certificate  of  eligibility  to 
promotion ; 

(d)  A  noncommissioned  officer  who  objects  thereto  (without  the 
authority  of  the  officer  competent  to  bring  him  to  trial  before  a  gen- 
eral court-martial)  ; 

(e)  Any  person  belonging  to  a  class  or  classes  excepted  from  the 
jurisdiction  of  summary  courts-martial  by  the  President. 

(2)  Any  crime  or  offense  (not  capital)  made  punishable  by  the 

Articles  of  War. 

[•Note. — For  list  of  capital  crimes  under  the  Articles  of  War  see  Sec.  Ill, 
par.  41,  supra.^ 

44.  Limits  of  punishment. — A  summary  court-martial  shall  not  have 
power  to  adjudge — 

{a)  Dishonorable  discharge, 

{h)   Confinement  in  excess  of  three  months,  nor 

((?)   Forfeiture  of  more  than  three  months'  pay. 

Exception. — When  the  summary  court  officer  is  also  the  command- 
ing officer,  no  sentence  of  such  summary  court-martial  adjudging 
confinement  at  hard  labor  or  forfeiture  of  pay,  or  both,  for  a  period 
in  excess  Qf  one  month  shall  be  carried  into  execution  until  the  same 
shall  have  been  approved  by  superior  authority.     (A.  W.  14.) 

[Note. —  {a)  Reduction  to  the  ranks  in  the  case  of  noncommissioned  officers 
and  ( h )  reduction  in  classification  in  the  cases  of  first-class  privates  are  within 
the  limits  of  the  punishing  power  of  summary  courts-martial.  (Act  of  Mar.  2, 
1913,  37  Stat,  723.)] 

Section  V. 
JURISDICTION  'OF  OTHER  MILITARY  TRIBUNALS. 

45.  When  concurrent  with  courts-martial. — The  provisions  of  the 
Articles  of  War  conferring  jurisdiction  upon  courts-martial  shall 
not  be  construed  as  depriving  military  commissions,  provost  courts, 
or  other  military  tribunals  of  concurrent  jurisdiction  in  respect  to 
offenders  or  offenses  that  by  the  law  of  war  may  be  lawfully  triable 
by  such  military  commissions,  provost  courts,  or  other  military 
tribunals.     (A.  W.  15.) 


CHAPTER  V. 
COURTS-MARTIAL— PROCEDURE  PRIOR  TO  TRIAL. 


Page. 

Section  I :  Arrest  and  confinement 25 

46.  Arrest  or  confinement  of  accused  persons 25 

47.  Who  may  order  arrests 26 

(a)  Commmanding  officers 26 

(6)  Judge  advocates 26 

(c)  Courts-martial 26 

48.  Arrest,  how  executed 26 

49.  Status  of  officer  in  arrest 26 

50.  Arrest  of  officer  without  preferring  charges 26 

51.  Arrest  of  medical  officer 27 

52.  Arrest  and  confinement  of  soldiers 27 

53.  Status  of  noncommissioned  officers  in  arrest 27 

54.  Abuse  of  authority  to  arrest 27 

55.  Refusal  to  receive  and  keep  prisoners 28 

56.  Placing  prisoners  in  irons 28 

57.  Releasing  prisoners  without  proper  authority 28 

Section  II :  Arrest  of  deserters  by  civil  authorities 28 

58.  Authority  for  apprehension 28 

59.  Authority  of  citizens  other  than  peace  officers  to  arrest  deserters 28 

60.  Minority  of  deserter 29 


Section  I. 
ARREST  AND  CONFINEMENT. 

46.  Arrest  or  confinement  of  accused  persons. — (a)  An  officer  charged 
with  crime  or  with  a  serious  offense  under  the  articles  of  war  shall  be 
placed  in  arrest  by  the  commanding  officer,  and  in  exceptional  cases 
an  officer  so  charged  may  be  placed  in  confinement  by  the  same 
authority. 

(5)  A  soldier  charged  with  crime  or  with  a  serious  offense  under 
the  articles  of  war  shall  be  placed  in  confinement,  and  when  charged 
with  a  minor  offense  he  may  be  placed  in  arrest. 

(g)  Any  other  person  subject  to  military  law  charged  with  crime 
or  with  a  serious  offense  under  the  articles  of  war  shall  be  placed  in 
confinement  or  in  arrest,  as  circumstances  may  require;  and  when 
charged  with  a  minor  offense  such  person  may  be  placed  in  arrest. 
Any  person  placed  in  arrest  under  the  proAdsions  of  this  article 

.     25 


26  MANUAL  FOE  COURTS-MARTIAL. 

(A.  W.  69)  shall  thereby  be  restricted  to  his  barracks,  quarters,  or 
tent,  unless  such  limits  shall  be  enlarged  by  proper  authority.  Any 
officer  who  breaks  his  arrest  or  who  escapes  from  confinement  before 
he  is  set  at  liberty  by  proper  authority  shall  be  dismissed  from  the 
service  or  suffer  such  other  punishment  as  a  court-martial  may  direct ; 
and  any  other  person  subject  to  military  law  who  escapes  from  con- 
finement or  who  breaks  his  arrest  before  he  is  set  at  liberty  by  proper 
authority  shall  be  punished  as  a  court-martial  may  direct.    (A.  W.  69. ) 

[Note. — ^A  failure  to  place  a  person  subject  to  military  law  in  arrest  or  con- 
finement or  the  disregard  of  any  custom  or  formality  connected  therewith  does 
not  affect  the  jurisdiction  of  a  court.] 

47.  Who  may  order  arrests. — (a)  Only  commanding  officers  have 

power  to  place  officers  in  arrest,  except  as  provided  in  A.  W.  68. 

[Note. — ^The  "  commanding  officer  "  thus  authorized  is  the  commander  of  the 
regiment,  separate  company,  detachment,  post,  department,  etc.,  in  which  the 
officer  is  serving.    Digest,  p.  481,  I  D.  1.] 

(b)  A  judge  advocate  of  a  court-martial  has  no  authority  to  place 
in  arrest  an  officer  or  soldier  about  to  be  tried  by  the  court,  or  to  com- 
pel the  attendance  of  the  accused  before  the  court  by  requiring  a  non- 
commissioned officer  to  bring  him,  or  otherwise.  These  are  duties 
which  devolve  upon  the  convening  authority  or  upon  the  post  com- 
mander or  other  proper  officer  in  whose  custody  or  command  the  ac- 
cused is  at  the  time.    (Digest,  p.  498,  IV,  B,  5.) 

(g)  A  court-martial  has  no  control  over  the  nature  of  the  arrest  or 
other  status  of  restraint  of  a  prisoner  except  as  regards  his  personal 
freedom  in  its  presence.  It  cannot  place  an  accused  person  in  arrest 
or  confinement  nor  can  the  court,  even  with  a  view  to  facilitate  his  de- 
fense, interfere  to  cause  a  close  arrest  to  be  enlarged.  The  officer  in 
command  is  alone  responsible  for  the  prisoners  in  his  charge.  (Davis, 
p.  62.) 

48.  Arrest,  how  executed. — An  officer  is  placed  in  arrest  by  his  com- 
manding officer  in  person  or  through  another  officer,  by  a  verbal  or 
written  order  or  communication,  advising  him  that  he  is  placed  in 
arrest,  or  will  consider  himself  in  arrest,  or  words  to  that  effect. 

49.  Status  of  officer  in  arrest. — An  officer  in  arrest  can  not  exercise 
command  of  any  kind.  He  will  not  wear  a  sword  nor  visit  officially 
his  commanding  or  other  superior  officer,  unless  directed  to  do  so. 
His  applications  and  requests  of  every  nature  will  be  made  in 
writing.     (A.  E.  926.) 

50.  Arrest  of  officer  without  preferring  charges. — Officers  will  not  be 
placed  in  arrest  for  light  offenses.  For  these  the  censure  of  the 
commanding  officer  will  generally  answer  the  purpose  of  discipline. 
Whenever  a  commanding  officer  places  an  officer  in  arrest  without 
preferring  charges,  he  will  make  a  written  report  of  his  action  to 
the  brigade  or  Coast  Artillery  district  commander,  stating  the  cause. 
The  brigade  or  Coast  Artillery  district  conmiander,  if  he  thinks  the 


COURTS- MARTIAL PROCEDURE  PRIOR  TO  TRIAL.  27 

occasion  requires,  will  call  on  the  officer  arrested  for  any  explanation 
he  may  desire  to  make,  and  take  such  other  action  within  his  au- 
thority as  he  may  think  necessary,  forwarding  the  papers,  with  his 
recommendation,  to  the  department  commander,  who  will,  in  case  a 
trial  is  not  deemed  advisable,  forward  the  papers  to  The  Adjutant 
General  of  the  Army  for  file  with  the  officer's  record,  or  for  further 
action.  In  the  case  of  officers  belonging  to  organizations  not  attached 
or  belonging  to  a  brigade  or  Coast  Artillery  district,  the  report  will 
be  sent  directly  to  the  officer  exercising  general  court-martial  juris- 
diction.    (A.  R.  924.) 

51.  Arrest  of  medical  officer. — In  ordinary  cases  where  inconvenience 
to  the  service  would  result  from  it,  a  medical  officer  will  not  be 
placed  in  arrest  until  the  court-martial  for  his  trial  convenes. 
(A.  R.  925.) 

52.  Arrest  and  confinement  of  soldiers. — Except  as  provided  in  A.  W. 
68,  or  when  restraint  is  necessary,  no  soldier  will  be  confined  without 
the  order  of  an  officer,  who  shall  previously  inquire  into  his  offense 
(A.  R.  930)  ;  it  is  proper,  however,  for  a  company  commander  to 
delegate  to  noncommissioned  officers  of  his  company  the  power  to 
place  enlisted  men  in  arrest  as  a  means  of  restraint  at  the  instant 
when  restraint  is  necessary,  but  such  action  must  be  reported  to  the 
company  commander  at  once.  (Digest,  p.  481, 1,  E,  1.) 

53.  Status  of  noncommissioned  officer  in  arrest. — Noncommissioned 
officers  will  not  be  confijied  in  company  with  privates  if  it  can  be 
avoided.  When  placed  in  arrest,  they  will  not  be  required  to  perform 
any  duty  in  which  they  may  be  called  upon  to  exercise  authority  or 
control  over  others,  and  when  placed  in  confinement,  they  will  not 
be  sent  out  to  work. 

54.  Abuse  of  authority  to  arrest. — The  fact  that  cases  of  officers  put 
in  arrest  "  at  remote  military  posts  or  stations "  are  excepted  from 
the  application  of  A.  W.  70  does  not  authorize  an  abuse  of  the  power 
of  arrest  in  these  cases.  And  where,  in  such  a  case,  an  arrest,  con- 
sidering the  facilities  of  communication  with  the  department  head- 
quarters and  other  circumstances,  is  in  fact  unreasonably  protracted 
without  trial  the  officer  is  entitled  to  be  released  from  arrest  upon 
a  proper  application  submitted  for  the  purpose.  (Digest,  p.  152, 
LXXI,  C.)  Though  an  officer,  in  whose  case  the  provisions  of 
A.  W.  70  in  regard  to  service  of  charges  and  trial  have  not  been 
complied  with,  is  entitled  to  be  released  from  arrest,  he  is  not  author- 
ized to  release  himself  therefrom.  If  he  be  not  released  in  accordance 
with  the  article  he  should  apply  for  his  discharge  from  arrest, 
through  the  proper  channels,  to  the  authority  by  whose  order  the 
arrest  was  imposed,  or  other  proper  superior.  (Digest,  p.  153, 
LXXI,  D.)  When  an  officer  is  placed  in  arrest  in  the  operation  of 
A.  W.  69  and  subsequently  tried  he  is  not  entitled  to  be  released  from 


28  MANUAL  FOR  COURTS- MARTIAL. 

arrest,  as  a  right,  until  the  proper  reviewing  authority  has  acted  on 
the  record  of  his  case.    (Digest,  p.  152,  LXV,  C.) 

55.  Refusal  to  receive  and  keep  prisoners. — No  provost  marshal  or 
commander  of  a  guard  shall  refuse  to  receive  or  keep  any  prisoner 
committed  to  his  charge  by  an  officer  belonging  to  the  forces  of  the 
United  States,  provided  the  officer  committing  shall,  at  the  time, 
deliver  an  account  in  writing,  signed  by  himself,  of  the  crime  or 
offense  charged  against  the  prisoner.  Any  officer  or  soldier  so  refus- 
ing shall  be  punished  as  a  court-martial  may  direct.     (A.  W.  71.) 

[Note. — A.  W.  72  requires  every  commander  of  a  guard  to  submit  a  report 
in  writing  to  his  commanding  oflacer  within  twenty-four  hours  after  the  confine- 
ment of  a  prisoner  (or  as  soon  as  he  is  relieved  from  his  guard)  showing  (a) 
the  name  of  such  prisoner,  (ft)  the  offense  charged  against  him,  and  (c)  the 
name  of  the  oflScer  committing  him.  Such  report  is  ordinarily  contained  in  the 
"  Guard  report "  and  presented  to  the  commanding  officer  by  the  old  officer  of 
the  day  at  guard  mounting.  For  duty  of  commanding  officers  to  surrender 
prisoners  to  civil  authorities,  see  par.  35.] 

56.  Placing  prisoners  in  irons. — Prisoners  will  not  be  placed  in  irons 
except  in  the  extraordinary  case  of  a  prisoner  who,  in  the  judgment 
of  the  commanding  officer,  is  a  desperate  or  dangerous  character,  in 
which  case  report  of  action  and  the  circumstances  will  be  immediately 
made  to  the  department  or  tactical  division  commander.  When  a 
prisoner  is  removed  from  irons  a  report  of  that  action  will  be  made  to 
the  department  or  tactical  division  commander.  A  prisoner  may  be 
shackled  or  handcuffed  while  being  transported  from  one  post  to  an- 
other, or  from  a  post  to  a  penitentiary,  when,  in  the  judgment  of  the 
officer  in  charge,  the  escape  of  the  prisoner  can  not  otherwise  be  pre- 
vented.   (A.E.  935.) 

57.  Releasing  prisoner  without  proper  authority. — Any  person  subject 
to  military  law,  who,  without  proper  authority,  releases  any  prisoner 
duly  committed  to  his  charge,  or  who,  through  neglect  or  design, 
suffers  any  prisoner  so  committed  to  escape,  shall  be  punished  as  a 
court-martial  may  direct.     (A.  W.  73.) 

Section  II. 
ARREST  OF  DESERTERS  BY  CIVIL  AUTHORITIES. 

58.  Authority  for  apprehension. — It  shall  be  lawful  for  any  civil 
officer  having  authority  under  the  laws  of  the  United  States,  or  of 
any  State,  Territory,  District,  or  possession  of  the  United  States,  to 
arrest  offenders,  summarily  to  arrest  a  deserter  from  the  military 
service  of  the  United  States  and  deliver  him  into  the  custody  of 
the  military  authorities  of  the  United  States.     (A.  W.  106.) 

59.  Authority  of  citizens  other  than  peace  officers  to  arrest  deserters. — 
The  statute  conferring  authority  upon  civil  officers  to  apprehend 
and  deliver  deserters  (A.  W.  106)  should  not  be  construed  as  taking 
away  the  authority  for  their  apprehension  by  a  citizen  under  an 


COURTS-MARTIAL PROCEDURE   PRIOR   TO   TRIAL.  29 

order  or  direction  of  a  military  officer,  but  the  legislation  should  be 
treated  as  providing  an  additional  means  of  securing  the  arrest  of 
deserters  by  conferring  authority  upon  civil  officers  to  apprehend 
them  without  military  orders — leaving  the  former  method  still  legal. 
The  offer  of  reward  for  the  apprehension  and  delivery  of  a  deserter, 
coupled  with  the  act  of  Congress  which  provides  for  the  payment 
of  such  a  reward,  is  considered  sufficient  authority  for  the  arrest  of 
the  deserter  by  a  citizen.     (C-17327-A,  July  20,  1909.) 

60.  Minority  of  deserter. — The  right  of  the  United  States  to  arrest 
and  bring  to  trial  a  deserter  is  paramount  to  any  right  of  control  over 
him  by  a  parent  on  the  ground  of  his  minority.  (See  Digest,  p.  401, 
III,  G;  In  re  Cosenow,  37  Fed.  Kep.,  668;  In  re  Kaufman,  41  Fed. 
Eep.,  876;  and  compare  In  re  Grimley,  137  U.  S.,  147,  and  in  In  re 
Morrissey,  137  U.  S.,  157.) 


CHAPTEE  VI. 
COURTS-MARTIAL— PROCEDURE  PRIOR  TO  TRIAL. 

[Continued.] 


Page. 

Section  I:  Preparation  of  charges 31 

61.  Definitions 31 

62.  Who  may  initiate  charges 32 

63.  Who  may  prefer  charges 32 

64.  Signing  charges 32 

65.  Accumulation  of  charges 32 

66.  Duplication  of  charges 33 

67.  Consolidation  of  charges 33 

68.  Refusal  to  submit  to  medical  treatment 33 

69.  Joint  charges 34 

70.  Charges  not  to  be  preferred  upon  uncorroborated  confession 34 

71.  Charges  for  private  indebtedness 35 

72.  Numbering  charges  and  specifications 35 

73.  Additional  charges 36 

74.  Rules  to  be  observed  in  pleading 36 

(a)  Statement  of  charge 36 

(6)  Statement  of  specification 36 

(c)  Alternative  pleading 36 

(d)  Evidence  not  to  be  pleaded 37 

(e)  Specific  articles,  when  used 37 

(/)  Forms  for  charges 37 

(g)  Time  and  place 37 

(h)  Christian  name 38 

(i)  Charging  under  alias 38 

(j)  General  prisoners 38 

(k)  Change  of  rank , 39 

(l)  Written  papers  and  oral  statements 39 

(m)  Scandalous  and  disgraceful  offenses 39 

(n)  Desertion  followed  by  fraudulent  enlistment 39 

(o)  Larceny  and  sale  of  public  property 39 

(p)  Wording  of  statute  to  be  followed 40 

Section  II:  Action  upon  charges 40 

75.  Submission  of  charges 40 

76.  Investigation  of  charges 40 

77.  Prompt  action  required 41 

78.  Determination  of  proper  trial  court 41 

79.  Disposition  of  copies  of  charges 42 

80.  Service  of  charges  upon  accused 42 


Section  I.  ,  . 

PREPARATION  OF  CHARGES. 

61.  Definitions — A  charge  corresponds  to  a  civil  indictment.     It 
consists  of  two  parts — the  technical  ""charge,^^  which  should  designate 

31 


32  MANUAL  FOR  COURTS-MARTIAL. 

the  alleged  crime  or  offense  as  a  violation  of  a  particular  article  of 
war  or  other  statute,  and  the  ^''speciflcation^^^  which  sets  forth  the 
facts  constituting  the  same.  The  requisite  of  a  charge  is  that  it 
shall  be  laid  under  the  proper  article  of  war  or  other  statute;  of  a 
specification^  that  it  shall  set  forth  in  simple  and  concise  language 
facts  sufficient  to  constitute  the  particular  offense  and  in  such  man- 
ner as  to  enable  a  person  of  common  understanding  to  know  what 
is  intended.  The  general  term  "  charges,"  in  the  sense  that  the 
word  "  charge "  is  used  in  the  first  sentence  of  this  paragraph, 
includes  any  number  of  technical  charges  and  their  specifications. 
[Note. — For  forms  for  changes  see  Appendix  4,] 

62.  Who  may  initiate  charges. — Military  charges,  though  commonly 
originating  with  military  persons,  may  be  initiated  by  civilians. 
Indeed,  it  is  but  performing  a  public  duty  for  a  civilian  who  becomes 
cognizant  of  a  serious  offense  committed  by  an  officer  or  a  soldier  to 
bring  it  to  the  attention  of  the  proper  commander.  A  charge  may 
likewise  originate  with  an  enlisted  man.  But  by  the  usage  of  the 
service  all  military  charges  should  be  formally  preferred  by — that  is, 
authenticated  by  the  signature  of — a  comrrbissioned  officer.  Charges 
proceeding  from  a  person  outside  the  Army  and  based  upon  testi- 
mony not  in  the  possession  or  knowledge  of  the  military  authorities, 
should,  in  general,  be  required  to  be  sustained  by  affidavits  or  other 
reliable  evidence,  as  a  condition  to  their  being  adopted.  (Digest,  p. 
482,  II,  B.) 

63.  Who  may  prefer  charges. — ^Any  officer  may  prefer  charges.  An 
officer  is  not  disqualified  from  preferring  charges  by  the  fact  that 
he  is  himself  under  charges  or  in  arrest.       (Digest,  p.  483,  II,  C.) 

64.  Signing  charges. — The  officer  preferring  charges  will  sign  his 
name  following  the  last  specification,  adding  his  rank  and  organiza- 
tion in  the  Army. 

The  signing  of  charges,  like  orders,  with  the  name  of  an  officer, 
adding  "by  order  of"  his  commander,  is  unusual  and  not  to  be 
recommended.  (Digest,  p.  487,  II,  D,  12,  a.)  The  signature  of 
the  officer  preferring  charges  forms  no  part  of  the  charges  them- 
selves, but  such  signature  will  nevertheless  he  copied  into  the  record 
of  trial  by  a  general  or  special  court-martial,  in  order  that  it  may 
affirmatively  appear  whether  the  officer  preferring  the  charges  (who 
is  prima  facie  the  accuser)  sat  as  a  member  of  the  court.  (See  A.  W. 
8,  9.) 

65.  Accumulation  of  charges. — It  may  sometimes  be  expedient,  where 
the  offenses  are  slight  in  themselves  and  it  is  deemed  desirable  to 
exhibit  a  continued  course  of  conduct,  to  wait,  before  preferring 
charges,  till  a  series  of  similar  acts  have  been  committed,  provided 


COURTS- MARTIAIj— PROCEDURE  PRIOR  TO   TRIAL.  33 

the  period  be  not  unreasonably  prolonged;  but,  in  general,  charges 
should  be  preferred  and  brought  to  trial  immediately  or  presently 
upon  the  commission  of  the  offenses.  Anything  like  an  accumula- 
tion or  saving  up  of  charges,  through  a  hostile  animus  on  the  part 
of  the  accuser,  is  discountenanced  by  the  sentiment  of  the  service. 
(Digest,  p.  490,  II,  F,  2.) 

66.  Duplication  of  charges. — The  duplication  of  charges  for  the  same 
act  or  omission  will  be  avoided  except  when,  by  reason  of  lack  of 
definite  information  as  to  available  evidence,  it  may  be  necessary  to 
charge  the  same  act  or  omission  as  constituting  two  or  more  distinct 
offenses.  When  the  same  act  or  omission  in  its  different  aspects  is 
charged  as  constituting  two  or  more  offenses,  the  court,  even  though 
it  arrives  at  a  finding  of  guilty  in  respect  of  two  or  more  specifica- 
tions, should  impose  punishment  only  with  reference  to  the  act  or 
omission  in  its  most  important  aspect,  and  if  this  rule  be  not  ob- 
served by  the  court  the  reviewing  authority  should  take  the  neces- 
sary action.  Thus  a  soldier  should  not  be  punished  for  disorderly 
conduct  and  for  assault,  when  the  disorderly  conduct  consisted  in 
making  the  assault.  And  so,  a  person  subject  to  military  law  should 
not  be  charged  under  A.  W.  61  for  failure  to  report  for  a  routine 
duty  at  a  time  included  in  a  period  for  which  he  is  charged  with 
absence  without  leave  under  the  same  article;  otherwise,  when  the 
duty  is  not  a  routine  duty.  Routine  duties  are  those  that  are  regu- 
larly scheduled,  such  as  reveille,  retreat,  stables,  fatigue,  schools, 
drills,  and  parades,  but  do  not  include  practice  marches  or  other 
previously  specially  appointed  and  important  exercises,  of  which 
the  accused  is  chargeable  with  notice. 

67.  Consolidation  of  charges. — Ordinarily  all  the  charges  against  the 
accused  should  be  consolidated  into  one  set  of  charges,  and  one  trial 
had  upon  the  consolidated  set  instead  of  having  two  or  more  trials, 
one  upon  each  set.  To  avoid  taking  up  unnecessarily  the  time  of  a 
court  with  minor  offenses,  where  charges  are  preferred  for  serious 
offenses,  there  should  not  be  joined  with  them  charges  for  minor 
derelictions,  unless  the  latter  serve  to  ex f  lain  the  cirawmstances  sur- 
roumding  the  serious  charges.  For  instance  charges  for  desertion 
should  not  ordinarily  be  joined  with  charges  for  losing  through  neg- 
lect Government  property  of  small  value;  nor  should  charges  for 
willful  disobedience  of  the  orders  of  a  commissioned  officer  ordinarily 
be  joined  with  charges  for  an  absence  from  a  routine  duty. 

68.  Refusal  to  submit  to  medical  treatment. — An  ofQcer  or  soldier  may 
be  charged  for  refusing  to  submit  to  a  surgical  operation  or  medical 
treatment  at  the  hands  of  the  military  authorities  if  it  is  designed 
to  restore  or  increase  his  fitness  for  service,  and  is  without  risk  of 
life. 

91487°— 17 4 


34  MANUAL   FOR   COURTS-MARTIAL. 

A  soldier  who  refuses  to  submit  to  a  surgical  operation  that  the 
attending  surgeon  certifies  is  without  risk  to  his  life  and  is  neces- 
sary for  the  removal  of  a  disability  that  prevents  the  full  perform- 
ance of  any  or  all  military  duties  that  properly  can  be  required  of 
him  will,  for  such  refusal,  be  brought  to  trial  by  general  court- 
martial  ;  but  if  in  any  such  case  the  attending  surgeon  is  in  doubt  as 
to  whether  the  proposed  operation  involves  risk  to  life,  the  soldier 
will  not  be  brought  to  trial  but  will  be  discharged  on  surgeon's  cer- 
tificate of  disability.     (G.  O.  43,  War  Dept.,  1906.) 

69.  Joint  charges. — ^Where  two  or  more  persons  jointly  and  in  pur- 
suance of  a  common  intent  commit  a  crime  or  offense  which  can  be 
committed  by  a  combination  of  persons  acting  in  concert,  they  may 
be  separately  charged  and  tried  for  such  crime  or  offense  or  may  be 
jointly  charged  and  jointly  tried.  The  actual  presence  of  all  of  the 
accused  persons  at  the  actual  commission  of  the  offense  is  not  neces- 
sary, for  all  who  take  part  in  the  enterprise  are  equally  guilty, 
though  they  may  be  absent  from  the  place  of  actual  commission  of 
the  offense  with  which  they  are  charged.  The  fact  that  justice  may 
require  that  different  degrees  of  punishment  be  awarded  to  the  dif- 
ferent parties  constitutes  no  objection  to  such  a  joint  prosecution. 
The  mere  fact  of  their  committing  the  same  offense  together  and  at 
the  same  time,  although  material  as  going  to  show  concert,  does  not 
necessarily  establish  it.  Thus  the  fact  that  several  soldiers  have  ab- 
sented themselves  together  without  leave  will  not,  in  the  absence  of 
evidence  indicating  a  concert  of  action,  justify  their  being  arraigned 
together  on  a  joint  charge,  for  they  may  merely  have  been  availing 
themselves  of  the  same  convenient  opportunity  of  leaving.  Nor  is 
desertion,  unless  in  execution  of  a  conspiracy,  chargeable  as  a  joint 
offense.  (Digest,  p.  484,  II,  D,  7.)  In  joint  charges  the  form  of 
the  charge  does  not  differ  from  that  in  other  charges.  The  form  of 
specification  will  read  as  follows: 

In  that  Private  ,  Company  ,  Infantry;  Private  , 

Company , Infantry ;  and  Private ,  Company , 


Infantry,  acting  jointly,  and  in  pursuance  of  a  common  intent,  did  [liere  allege 
the  offense  in  the  language  prescribed  where  the  offense  is  committed  by  only 
one  person]. 

The  right  of  challenge  may,  of  course,  be  exercised  by  each  of  the 
accused.     {C.  M.  C.  M,,  No.  1.) 

70.  Charges  not  to  be  preferred  upon  uncorroborated  confession. — 
Charges  should  not  be  preferred  for  an  offense  unless  there  is  some 
evidence  other  than  the  confession  of  the  accused  that  the  offense 
has  been  committed.    This  applies  particularly  in  cases  of  fraudulent 


COURTS-MARTIAL PROCEDURE  PRIOR  TO   TRIAL.  35 

enlistment.  The  mere  confession  by  the  accused  that  he  had  prior 
service,  or  was  under  a  certain  disability  at  the  time  he  enlisted, 
and  concealed  that  fact  should  not  be  made  the  basis  for  charges 
unless  there  is  something  confirming  the  confession.  Charges  should 
not  be  preferred  in  such  cases  until  corroborating  evidence  that  the 
offense  was  committed  has  been  secured,  or  that,  the  existence  of  such 
evidence  being  ascertained,  the  necessary  steps  to  obtain  it  have  been 
taken.     (See  par.  225.) 

71.  Charges  for  private  indebtedness. — The  military  authorities  will 
not  attempt  to  discipline  officers  and  soldiers  for  failure  to  pay  dis- 
puted private  indebtedness  or  claims — ^that  is,  indebtedness  or  a 
claim  where,  in  the  opinion  of  the  military  authorities,  there  is  a 
genuine  dispute  as  to  the  facts  or  law — ^nor  will  the  military  authori- 
ties attempt  to  decide  such  disputed  indebtedness  or  claims.  If  the 
indebtedness  is  disputed  the  creditor  should  resort  to  the  civil  courts 
to  establish  the  liability.  If,  in  the  opinion  of  the  military  authori- 
ties, the  facts  and  law  are  undisputed  and  there  appears  to  the  mili- 
tary authorities  to  be  a  private  indebtedness,  and  the  officer  or  soldier 
does  not  claim  to  have  a  legal  or  equitable  set-off  or  counterclaim  to 
urge  against  it,  an  officer  may  be  brought  to  trial  if  his  failure  is  con- 
sidered to  be  a  violation  of  A.  W.  95  or  A.  W.  96,  and  a  soldier  may 
be  tried  if  his  failure  is  considered  to  be  a  violation  of  A.  W.  96,  but 
no  action  will  be  taken  by  the  military  authorities  to  enforce  pay- 
ment. If  an  officer  or  soldier  by  his  conduct  in  incurring  the  in- 
debtedness or  by  his  attitude  toward  it  or  his  creditor  thereafter 
reflect  discredit  upon  the  service  to  which  he  belongs,  he  should  be 
brought  to  trial  for  his  misconduct.  If  the  facts  and  law,  in  the 
opinion  of  the  military  authorities,  are  undisputed  and  there  appears 
to  the  military  authorities  to  be  no  indebtedness,  the  department  will 
take  no  further  action.  Where  a  soldier  was  largely  indebted  and 
failed  to  pay  his  indebtedness  and  the  commanding  officer  denied  the 
soldier  all  pass  privileges  until  the  indebtedness  was  paid,  it  was 
held  that  such  action  on  the  part  of  the  commanding  officer  consti- 
tuted an  attempt  to  enforce  payment  of  the  indebtedness  and  was 
contrary  to  the  policy  of  the  War  Department  and  such  action  should 
be  revoked.     (Digest,  p.  878,  IV.) 

72.  Numbering  charges  and  specifications. — ^Where  there  are  several 
specifications  under  one  article,  the  usual  procedure  is  to  place  them 
all  under  one  charge,  rather  than  to  make  several  charges  with  one 
specification  under  each.  Where  there  are  several  specifications  under 
one  charge  they  will  be  consecutively  numbered,  and  where  there  are 
several  charges,  the  charges  will  be  consecutively  numbered. 


S6  MANUAL  FOE  COURTS-MARTIAL. 

73.  Additional  charges. — New  and  separate  charges  which  are  pre- 
ferred after  others  have  been  preferred  are  known  in  military  law 
as  "  additional  charges."  Such  charges  may  relate  to  past  transac- 
tions which  were  not  known  by  or  brought  to  the  attention  of  the 
officer  framing  or  ordering  the  original  charges  at  the  time  they 
were  preferred;  or  they  may,  as  is  more  frequent,  arise  from  acts 
-of  the  accused  subsequent  to  his  arrest  or  confinement  on  the  original 
charges.  Thus,  if  after  charges  have  been  preferred  he  commits  a 
"breach  of  arrest,"  an  additional  charge  will  properly  be  preferred 
in  the  case,  and  should  be  designated  as  an  "  additional "  charge. 
Charges  of  this  character  do  not  require  a  separate  trial,  but  may 
and  preferably  should  be  tried  by  the  same  court  that  tries  the 
original  charges,  and  at  the  same  time  subject  to  the  limitation  re- 
garding service  of  charges  contained  in  A.  W.  TO.  If  practicable  to 
consolidate  the  two  sets  of  charges  this  should  be  done,  otherwise 
the  second  set  will  be  denominated  "  additional  "  charges.  After  the 
court  has  been  duly  sworn  to  try  and  determine  "  the  matter  now 
before  it  "  additional  charges  which  the  accused  has  had  no  notice  to 
defend  and  regarding  which  the  right  to  challenge  has  not  been  ac- 
corded him,  can  not  be  introduced  or  the  accused  required  to  plead 
thereto.  Such  charges  must  await  a  separate  trial.  (See  Winthrop, 
pp.  225,  226.)     {C,  M.  O.  M.,  No,  L) 

74.  Rules  to  be  observed  in  pleading. —  {a)  Statement  of  charge. — 
The  charge  should  be  limited  to  a  statement  of  the  article  violated, 
as  "  Violation  of  the  58th  article  of  war,"  or  "  Violation  of  the  85th 
article  of  war."  Common  law  and  statutory  crimes,  not  specified  in 
the  Articles  of  War,  over  which  courts-martial  have  jurisdiction 
should,  if  not  capital,  be  charged  under  A.  W.  96. 

{h)  Statement  of  sfedficaiion. — The  specification  need  not  possess 
the  technical  nicety  of  an  indictment.  In  general  a  bald  statement  of 
the  facts  in  simple  and  concise  language,  and  in  such  a  manner  as  to 
enable  a  person  of  common  understanding  to  know  what  is  intended 
is  sufficient,  provided  the  offense  itself  be  distinctly  and  accurately 
described.  More  specifically,  (1)  the  name,  rank,  title,  and  organiza- 
tion of  the  accused  person,  if  he  belongs  to  the  Army  of  the  United 
States,  should  be  stated,  or  if  he  is  a  civilian  he  should  be  so  de- 
scribed that  it  appears  he  is  a  person  subject  to  military  law,  or  by 
statute  or. the  law  of  war,  is  subject  to  trial  by  military  tribunals; 
(2)  the  facts  that  constitute  the  offense  charged  will  be  set  out  briefly 
but  clearly,  together  with  the  place  and  time  of  commission.  Care 
should  be  taken  that  all  the  elements  of  the  offense  as  denounced  in 
the  article  of  war  or  other  statute  are  set  forth.  The  specification 
must  be  appropriate  to  the  charge.  (See  Winthrop,  p.  189,  and 
authorities  there  cited.) 


COURTS- MARTIAL PROCEDURE   PRIOR   TO    TRIAL.  37 

(c)  Altermative  pleading. — A  specification  should  not  allege  two 
offenses  in  the  alternative.  For  example,  an  offense  under  A.  W.  84 
can  not  be  charged  by  the  words,  "  did  sell  or  through  neglect  lose." 
If,  as  the  result  of  an  investigation,  there  is  doubt  whether  the  prop- 
erty has  been  sold  or  lost,  both  offenses  may  be  charged  under  sepa- 
rate specifications.  Care  will  be  taken  in  every  case  where  an  article 
of  war  includes  two  or  more  offenses  to  see  that  each  specification 
alleges  but  a  single  offense.     (See  Digest,  p.  487,  II,  D,  11,  d.) 

(d)  Evidence  not  to  he  pleaded. — It  is  not  good  pleading  in  al- 
leging an  offense  to  state  the  circumstances  or  evidence  proving  or 
tending  to  prove  it,  such  as  the  acts,  occurrences,  and  matters  of  de- 
scription, which  should  properly  form  part  of  the  testimony  of 
witnesses;  but  there  is  no  objection  to  stating  very  briefly  in  the 
specification  the  immediate  result  or  effect  of  the  act  charged  as  a 
circumstance  of  description  illustrating  the  character  and  extent  of 
the  offense  committed.  For  instance,  in  charging  a  striking  or  doing 
of  violence  to  a  superior  officer  under  A.  W.  64,  it  is  allowable,  in  a 
case  where  the  assault  was  fatal,  to  add  in  the  specification,  "  thereby 
causing  his  death,"  as  indicating  the  measure  of  violence  employed. 
(Digest,  p.  488,  II,  D,  14,  a.) 

{e)  Speciftc  articles^  when  used. — ^When  a  crime  or  offense  is  spe- 
cifically provided  for  in  an  article  of  war,  the  charge  will  be  laid 
mider  that  article  and  not  under  the  general  article,  i.  e.,  under  A.  W. 
96.  This  rule  is  particularly  to  be  observed  when  the  crime  or  offense 
falls  under  an  article  which  prescribes  a  fixed  punishment.  (See, 
however,  A.  W.  37.) 

[Note. — In  charging  offenses  against  cadets  for  violation  of  regulations  of  the 
Military  Academy,  the  offense,  if  covered  by  a  specific  article  applicable  to 
cadets,  will  be  laid  under  that  article  (G.  O.  64,  War  Dept.,  1906),  otherwise  it 
will  be  laid  under  the  general  article.] 

(/)  Forms  for  charges. — The  forms  for  charges  and  specifications 
set  forth  in  Appendix  4  cover  most  of  the  offenses  that  are  tried  by 
military  courts  and  covered  in  the  maximum-punishment  order. 
These  forms  may  be  followed,  in  the  cases  to  which  they  apply,  but 
they  are  not  mandatory. 

{g)  Time  and  place. — The  allegations  of  the  time  and  place  of  the 
commission  of  an  offense  should  be  stated  as  accurately  as  possible, 
but  where  the  act  or  acts  charged  extend  over  a  considerable  period 
of  time  it  may  be  necessary  to  cover  such  period  in  the  allegation. 
Thus  allegations  of  "  from  March  to  September,  1887,"  and  "  from 
May  to  October,  1888,"  have  been  countenanced  in  a  case  in  which 
the  accused  was  charged  with  the  neglect  of  a  duty  that  required  con- 
tinuous performance.  (Digest,  p.  486,  II,  D,  10,  h.)  So,  also,  it  is 
proper  to  allege  that  an  offense  was  committed  while  "  en  route  "  be- 
tween certain  points.  (Digest,  p.  486,  II,  D,  9,  h.)  So  where  the 
exact  time  or  place  of  the  commission  of  the  offense  is  not  known  it 


38  MANUAL  FOB  COUETS-MARTIAL. 

is  frequently  preferable  to  allege  it  as  having  occurred  "  on  or  about  ** 
a  certain  date  or  time,  or  "  at  or  near  "  a  certain  locality,  rather  than 
to  aver  it  as  committed  on  a  particular  day  or  between  two  specified 
days  or  at  a  particular  place.  There  is  no  defined  construction  to  be 
placed  upon  the  words  "  on  or  about "  as  used  in  the  allegation  of 
time  in  a  specification.  The  phrase  can  not  be  said  to  cover  any 
precise  number  of  days  or  latitude  in  time.  It  is  ordinarily  used  in 
military  pleading  for  the  purpose  of  indicating  some  period,  as 
nearly  as  can  be  ascertained  and  set  forth,  at  or  during  which  the 
offenses  charged  are  believed  to  have  been  committed — in  cases  where 
the  exact  day  can  not  well  be  named.  And  the  same  is  to  be  said  as 
to  the  use  of  the  words  "  at  or  near  "  in  connection  with  the  averment 
of  place.  (Digest,  p.  485,  II,  D,  9,  cu)  If  the  specification  alleges 
the  offense  to  have  been  committed  "  on  "  a  certain  date  or  "  at "  a 
certain  place,  the  court  in  its  findings  may,  by  exceptions  and  substi- 
tutions, find  another  date  or  place  if  the  evidence  supports  such 
amendments,  provided  the  new  date  or  place  is  sufficiently  near  the 
one  alleged  that  an  injustice  is  not  done  the  accused.  In  preparing 
several  specifications  under  one  charge,  the  time  and  place  of  the 
alleged  offense  will  be  given  in  each  specification. 

{h)  Christian  name. — The  Christian  name  of  an  accused  should  be 
used  in  preparing  charges,  but  where  there  are  one  or  more  middle 
names  they  may  be  indicated  by  the  initials  only.  In  the  case  of  a 
person  in  the  military  service  the  name  used  in  the  charges  should 
correspond  to  that  borne  by  the  accused  on  the  muster  rolls  or  the 
Army  register. 

(^)  Charging  vmder  '-^  alias y — ^If  the  accused  is  known  by  two 
names,  as  where  a  soldier  enlists  under  a  name  different  from  that 
under  which  he  was  known  in  his  prior  enlistment,  both  the  heading 
of  the  charge  and  the  specification  will  describe  him  under  his  true 
name  and  also  imder  his  assmned  name  as  an  alias. 

(j)  General  prisoners. — ^In  charging  a  general  prisoner  with  an 
offense,  the  form  of  the  charge  will  not  be  changed  but  the  specifica- 
tion will  read  as  follows: 

In  that  General  Prisoner  A B did   [here  allege  the  offense  in 

the  language  prescribed  when  it  is  committed  by  an  officer  or  soldier]. 

It  is  not  necessary  to  allege  in  the  specification  that  the  general 
prisoner  was  formerly  a  soldier,  was  tried  by  a  general  court-martial, 
and  sentenced  to  dishonorable  discharge  and  a  term  of  confinement, 
and  that  he  committed  the  offense  while  serving  such  confinement. 
The  words  "  general  prisoner  "  necessarily  import  such  facts. 

[Note. — General  prisoners  are  persons  sentenced  to  dismissal  or  dishonor- 
able discharge  and  to  terms  of  confinement  at  military  posts  or  elsewhere.] 


COURTS- MARTIAL PROCEDURE   PRIOR  TO   TRIAL.  39 

{k)  Change  of  rank. — Where  the  rank  of  the  accused  has  changed 
since  the  commission  of  an  offense,  the  specification  will  read  as  fol- 
lows: 

In  that  Private  A B ,  Company  ,  Infantry,  then 

sergeant,  Company , Infantry,  did,  etc. 

{I)  Written  papers  and  oral  statements. — A  specification  in  alleg- 
ing the  violation  of  an  order  which  has  been  given  in  writing,  or  of 
any  written  obligation — as  an  oath  of  allegiance,  parole,  etc. — should 
preferably  set  forth  the  writing  verbatim,  or  at  least  state  fully  its 
substance,  and  then  clearly  specify  the  act  or  acts  which  constitute 
its  alleged  violation.  Oral  statements  should  be  alleged  in  as  nearly 
the  exact  words  as  possible,  but  should  always  be  qualified  by  the 
words  "or  words  to  that  effect,"  or  some  similar  expression,  since 
proof  will  generally  vary  as  to  some  word  or  words,  particularly  if 
some  time  has  elapsed  since  the  incident.  A  similar  rule  obtains  in 
cases  involving  insubordinate  or  disrespectful  language. 

(m)  Scandalous  and  disgrojceful  offenses. — In  framing  charges  it 
is  permissible,  under  the  custom  of  the  service,  after  alleging  the 
facts  in  the  specification,  to  add,  "  This  to  the  scandal  and  disgrace 
of  the  military  service."  This  form  of  charge  is  appropriate  in  cases 
of  particularly  disgraceful  conduct  occurring  in  the  presence  of  a 
number  of  persons,  particularly  civilians,  or  in  uniform,  or  other- 
wise resulting  in  publicity. 

(n)  Desertion  followed  hy  fraudulent  enlistment. — Enlistment  by 
a  soldier  in  desertion  is  fraudulent.  Such  soldier  should  be  charged 
with  desertion  under  A.  W.  58,  and  with  fraudulent  enlistment 
under  A.  W.  54.  (Cir.  28,  War  Dept.,  1908.)  A  fraudulent  enlist- 
ment is  no  defense  to  a  charge  of  desertion  but  is  proof  of  such  deser- 
tion, for  a  soldier  can  not  be  excused  from  repudiating  a  pending 
contract  by  substituting  another  in  its  place.  In  such  a  case  the 
status  of  desertion  remains,  notwithstanding  the  deserter's  presence 
in  the  military  service  under  a  fraudulent  enlistment,  until  he  sur- 
renders as  a  deserter  or  is  apprehended  as  such.  For  a  single  deser- 
tion followed  by  a  fraudulent  enlistment,  hut  one  specification  for 
desertion  will  he  preferred^  in  addition  to  the  specification  for  fraud- 
ulent enlistment. 

[Note. — A.  W.  29  constitutes  a  rule  of  evidence  and  is  not  a  punitive  article.] 

{p)  Larceny  and  sale  of  puhUc  property. — In  cases  of  larceny  of 
property  (not  described  in  A.  W.  94)  where  the  accused  has  sold  the 
stolen  property,  the  charges  should  not  include  specifications  alleg- 
ing the  sale  except  where  the  same  has  been  made  to  an  innocent 
party  and  constitutes  such  a  fraud  upon  the  purchaser  as  to  warrant 
the  preferment  of  a  specification  based  upon  such  fraud.     Proof  of 


40  MANUAL  FOR  COUETS-MARTIAL. 

a  subsequent  sale  of  stolen  property  goes  to  show  intent  to  steal,  and, 
therefore,  evidence  of  such  sale  should  be  introduced  to  support 
charges  of  larceny,  wherever  available.  Larceny  and  sale  of  United 
States  property  in  violation  of  A.  W.  94  should  each  be  charged  in 
separate  specifications,  since  that  article  denounces  both  offenses. 

(p)  Wording  of  statute  to  he  followed. — TVHierever  practicable  the 
exact  words  of  the  articles  of  war  will  be  followed.  A  person  under 
the  influence  of  intoxicating  liquor  which  incapacitates  him  mentally 
or  physically  for  the  proper  performance  of  duty  is  "  drunk."  There- 
fore, under  A.  W.  85  the  word  "  drunk  "  will  be  used.  So  in  charg- 
ing other  offenses  involving  drunkenness  no  other  word  or  phrase 
will  be  used  as  a  substitute  for  "  drunk."  Under  such  charges  the 
court  should  not  in  its  findings  substitute  such  phrases  as  "  under  the 
influence  of  intoxicating  liquor  "  and  "  intoxicated  "  for  "  drunk." 

Section  II. 

ACTION  UPON  CHARGES. 

75.  Submission  of  charges. — All  charges  for  trial  by  court-martial 
will  be  prepared  in  triplicate,  using  the  prescribed  charge  sheet  as  a 
first  sheet  and  using  such  additional  sheets  of  ordinary  paper  as  are 
required.    They  will  be  accompanied — 

(a)  Except  when  trial  is  to  be  had  by  summary  court,  by  a  brief 
statement  of  the  substance  of  all  material  testimony  expected  from 
each  material  witness,  both  those  for  the  prosecution  and  those  for 
the  defense,  together  with  all  available  and  necessary  information  as 
to  any  other  actual  or  probable  testimony  or  evidence  in  the  case ;  and 

(h)  In  the  case  of  a  soldier,  by  properly  authenticated  evidence  of 
convictions,  if  any,  of  an  offense  or  offenses  committed  by  him  during 
his  current  enlistment  and  within  one  year  next  preceding  the  date 
of  the  alleged  commission  by  him  of  any  offenses  set  forth  in  the 
charges. 

They  will  be  forwarded  by  the  officer  preferring  them  to  the  officer 
immediately  exercising  summary  court-martial  jurisdiction  over  the 
command  to  which  the  accused  belongs,  and  will  by  him  and  by  each 
superior  commander  into  whose  hands  they  may  come  either  be  re- 
ferred to  a  court-martial  within  his  jurisdiction  for  trial,  forwarded 
to  the  next  superior  authority  exercising  court-martial  jurisdiction 
over  the  comimand  to  which  the  accused  belongs  or  pertains,  or  other- 
wise disposed  of  as  circumstances  may  appear  to  require. 

76.  Investigation  of  charges. — ^If  the  officer  immediately  exercising 
summary  court-martial  jurisdiction  over  the  command  to  which  the 
accused  belongs  or  pertains  decides  to  forward  the  charges  to  superior 
authority  he  will,  before  so  doing,  either  carefully  investigate  them 


COUETS-MARTIAL PROCEDURE  PRIOR  TO  TRIAL.  41 

himself  or  will  cause  an  officer  other  than  the  officer  preferring  the 
charges  to  investigate  them  carefully  and  to  report  to  him,  orally  or 
otherwise,  the  result  of  such  investigation.  The  officer  investigating 
the  charges  will  afford  to  the  accused  an  opportunity  to  make  any 
statement,  offer  any  evidence,  or  present  any  matter  in  extenuation 
that  he  may  desire  to  have  considered  in  connection  with  the  accusa- 
tion against  him.  (See  par.  225  (&),  p.  112.)  If  the  accused  de- 
sires to  submit  nothing,  the  indorsement  will  so  state.  In  his 
indorsement  forwarding  the  charges  to  superior  authority  the  com- 
manding officer  will  include: 

(a)  The  name  of  the  officer  who  investigated  the  charges; 

(h)  The  opinion  of  both  such  officer  and  himself  as  to  whether  the 
several  charges  can  be  sustained; 

(c)  The  substance  of  such  material  statement,  if  any,  as  the  ac- 
cused may  have  voluntarily  made  in  connection  with  the  case  during 
the  investigation  thereof; 

(d)  A  summary  of  the  extenuating  circumstances,  if  any,  con- 
nected with  the  case; 

(e)  His  recommendation  of  action  to  be  taken. 

77.  Prompt  action  required. — No  person  put  in  arrest  shall  be  con- 
tinued in  confinement  more  than  eight  days,  or  until  such  time  as  a 
court-martial  can  be  assembled.  When  any  person  is  put  in  arrest 
for  the  purpose  of  trial,  except  at  remote  military  posts  or  stations, 
the  officer  by  whose  order  he  is  arrested  shall  see  that  a  copy  of  the 
charges  on  which  he  is  to  be  tried  is  served  upon  him  within  eight  days 
after  his  arrest,  and  that  he  is  brought  to  trial  within  ten  days  there- 
after, unless  the  necessities  of  the  service  prevent  such  trial ;  and  then 
he  shall  be  brought  to  trial  within  thirty  days  after  the  expiration 
of  said  ten  days.  If  a  copy  of  the  charges  be  not  served,  or  the  ar- 
rested person  be  not  brought  to  trial,  as  herein  required,  the  arrest 
shall  cease.  But  persons  released  from  arrest,  under  the  provisions 
of  A.  W.  70,  may  be  tried  whenever  the  exigencies  of  the  service 
shall  permit,  within  twelve  months  after  such  release  from  arrest. 
(A.  W.  70.)  ' 

78.  Determination  of  proper  trial  conrt — When  an  officer  who  exer- 
cises court-martial  jurisdiction  receives  charges  against  an  enlisted 
man  it  is  his  duty  to  consider  whether  they  shall  be  tried  by  gen- 
eral, special,  or  summary  court-martial.  He  should  not  withhold 
charges  from  trial  hj  special  or  summary  court  solely  for  the  rea- 
son that  the  maximum  limit  of  punishment  is  beyond  the  juris- 
diction of  such  courts  to  impose.  On  the  other  hand,  he  should 
not  refer  to  a  special  or  summary  court-martial  offenses  which  by 
reason  of  their  inherent  gravity  or  of  the  circumstances  surrounding 
their  commission  merit  greater  formality  of  trial  or  more  condign 
punishment  than  is  found  in  the  procedure  or  jurisdiction  of  such 
courts.    No  fixed  rule  can  be  laid  down  and  the  matter  must  be  de- 


42  MANUAL  FOR  COURTS-MARTIAL. 

cided  by  the  careful  consideration  of  commanders  subject  to  the 
limitations  that  while,  in  a  proper  case,  desertion  may  be  tried  be- 
fore a  special  court,  felonies  and  crimes  involving  moral  turpitude 
should  not  be,  and  capital  crimes  can  not  be  tried  by  special  or  sum- 
mary courts-martial.  (A.  W.  13,  14.  For  list  of  capital  crimes  and 
offenses  see  Chap.  IV,  Sec.  III.) 

79.  Ihspositlon  of  copies  of  charges. —  (a)  When  trial  is  to  be  had  by 
summary  court  the  charges  will  be  completed  as  the  record  of  trial,  a 
copy  thereof  will  be  completed  as  a  copy  of  the  summary  court  record 
for  the  company  or  other  commander,  and  the  other  copy  will,  with 
the  least  practicable  delay  after  action  has  been  taken  on  the  sentence, 
be  completed  and  transmitted  as  the  required  report  of  trial  to  the 
officer  exercising  general  court-martial  jurisdiction  over  the  com- 
mand, there  to  be  filed  in  the  office  of  the  judge  advocate  for  a  period 
of  two  years,  at  the  end  of  which  time  it  may  be  destroyed. 

(h)  When  trial  is  to  be  had  by  special  or  general  court-martial  the 
charges  and  one  copy  thereof  will  be  referred  to  the  trial  judge  advo- 
cate, the  copy  to  be  furnished  by  him  to  the  accused  or  his  counsel, 
and  the  other  copy  will  be  used  for  record  purposes  in  the  office  of  the 
officer  appointing  the  trial  court,  the  top  fold  of  this  copy  of  the 
charge  sheet,  in  case  of  trial  by  general  court-martial,  being  detached 
at  the  proper  time  and  forwarded  with  the  record  of  trial  to  the 
Judge  Advocate  General  of  the  Army. 

80.  Service  of  charges  upon  accused. — In  order  that  the  accused  may 
have  sufficient  time  to  prepare  for  his  defense  it  is  provided  by  A.  W. 
70  that  in  time  of  peace  no  person  shall,  against  his  objection,  be 
brought  to  trial  before  a  general  court-martial  within  a  period  of 
five  days  subsequent  to  the  service  of  (charges  upon  him. 


CHAPTER  VII. 
COURTS-MARTIAL— ORGANIZATION. 


Paga 

Section  I:  The  members 44 

81.  Place  of  meeting — Duties  of  members 44 

82.  Uniform 44 

83.  Seating  of  court 44 

84.  Roll  call 44 

85.  Absence  of  member 44 

86.  Decorum  to  be  observed 45 

87.  Control  of  court  over  accused 45 

88.  Accused  not  to  be  tried  in  irons 45 

89.  Duties  of  the  president 45 

90.  Voting 46 

91.  Closed  sessions 46 

92.  Sitting  with  closed  doors 47 

93.  Change  in  membership 47 

Section  II :  The  judge  advocate 47 

94.  Selection 47 

95.  General  duties 48 

96.  Duty  toward  accused -  -  -  48 

97.  Examination  of  charges 49 

98.  Whole  truth  to  be  presented 49 

99.  Legal  adviser  of  the  court 49 

100.  Freedom  in  conducting  case 49 

101.  Closed  sessions 50 

102.  Accuser  or  prosecutor 50 

103.  Expediting  trials 50 

104.  Weekly  reports. 50 

105.  Detail  of  orderly 50 

Section  III:  Assistant  judge  advocate  51 

106.  Appointment '. 51 

107.  Duties 51 

Section  IV:  Counsel ^ 51 

108.  Appointment 51 

109.  Duty  of  officer  as  counsel 52 

110.  Eight  to  interview  the  accused 52 

111.  Witnesses,  how  questioned  during  trial 52 

Section  V:  Reporter 52 

112.  Employment 52 

113.  Compensation 53 

Decisions  (a)  to  (/) 53 

114.  Disposition  of  vouchers 54 

115.  Detail  of  soldier 54 

116.  Time  limit  for  completing  record 64 

117.  Carbon  copies  of  the  record 54 

118.  Extra  compensation  for  clerical  duties 55 

Section  VI:  Interpreter 56 

119.  Employment  and  pay 55 

43 


44  MANUAL  FOK  COURTS-MARTIAL. 

Section  I. 
THE  MEMBERS. 

81.  Place  of  meeting — Duties  of  members. — The  authority  appointing 
a  general  or  special  court-martial  designates  the  place  for  holding 
the  court,  hour  of  meeting,  the  members  of  the  court,  and  the  judge 
advocate.  A  general  or  special  court-martial  assembles  at  its  first 
session  in  accordance  with  the  order  convening  it ;  thereafter,  accord- 
ing to  adjournment.  Courts  will  be  assembled  at  posts  or  stations 
where  trial  will  be  attended  with  the  least  expense.  A  member  sta- 
tioned at  the  place  where  the  court  sits  is  liable  to  duty  with  his 
command  during  adjournment  from  day  to  day.  Subject  to  any  in- 
structions that  may  be  given  by  the  authority  that  appoints  the 
court,  the  court  will  determine  the  hours  of  holding  its  sessions. 

82.  Uniform. — For  regulations  regarding  uniform  to  be  worn  by 
members  of  courts-martial,  the  judge  advocate,  the  accused,  and  wit- 
nesses see  Regulations  for  the  Uniform  of  the  United  States  Army. 
In  any  case  of  doubt  (as  where  the  court  consists  of  members  but 
recently  mustered  into  the  service),  the  president  of  the  court  will 
designate  the  uniform  in  the  notice  sent  to  members  notifying  them 
of  the  place  and  hour  of  meeting  of  the  first  session. 

83.  Seating  of  court. — When  the  court  is  ready  to  proceed  it  is  called 
to  order  by  the  president.  Members  will  be  seated  according  to 
rank,  alternately  to  the  right  and  left  of  the  president.  The  judge 
advocate,  the  accused,  and  his  counsel  are  seated  so  as  to  be  most 
easily  seen  and  heard  by  all  the  members  of  the  court.  The  reporter 
should  be  seated  near  the  judge  advocate. 

84.  Roll  call. — At  the  beginning  of  each  session  the  judge  advocate 

verifies  the  presence  or  absence  of  the  members  of  the  court  by  calling 

each  officer's  name  or  by  informally  noting  hi^  presence  or  absence. 

This  verification  is  noted  in  the  record.     (See  Appendices  6,  7  for 

record  of  general  and  special  courts-martial.)     When  the  accused 

and  his  counsel  appear  before  the  court  for  the  first  time  the  judge 

advocate  will  announce  their  names  to  the  court. 

[Note. — For  number  necessary  to  constitute  a  quorum  of  a  general  or  special 
court-martial  and  the  procedure  to  be  taken  when  the  number  is  reduced  below 
five,  see  par.  7.] 

85.  Absence  of  member. — ^A  member  of  a  court-martial  who  knows, 
or  has  reason  to  believe,  that  he  will,  for  a  proper  reason,  be  absent 
from  a  session  of  the  court,  will  inform  the  judge  advocate  accord- 
ingly. When  a  member  of  a  court-martial  is  absent  from  a  se^on 
thereof,  the  judge  advocate  will  cause  that  fact,  together  with  the 
reason  for  such  absence  if  known  to  him,  to  be  shown  in  the  record  of 
proceedings.  If  the  reason  for  such  absence  is  not  known  to  the  judge 
advocate,  he  will  cause  the  record  to  show  the  member  as  absent,  cause 


COUETS-MARTIAL — ORGANIZATION.  45 

unknown.     In  any  event,  the  appointing  authority  will  take  such 
action,  if  any,  relative  to  such  absence  as  he  may  deem  proper. 

86.  Decorum  to  be  observed. — Trials  before  courts-martial  will  be 
conducted  with  the  decorum  observed  in  civil  courts.  The  conduct 
of  members  should  accordingly  be  dignified  and  attentive.  Reading 
of  newspapers  of  other  evidence  of  inattention  by  members  of  a 
court-martial  during  its  sessions  constitutes  a  neglect  of  duty  to  the 
prejudice  of  good  order  and  military  discipline.  It  is  the  duty  of 
the  president  of  the  court  to  admonish  against  such  inattention,  and 
charges  may  be  preferred  against  a  member  who  does  not  heed  the 
admonition.  A  court-martial  has  no  power  to  punish  its  members, 
but  a  member  is  liable  to  charges  and  trial  for  improper  conduct 
as  for  any  other  offense  against  military  discipline.  Improper  words 
used  by  a  member  should  be  taken  down  in  writing  and  any  dis- 
orderly conduct  reported  to  the  appointing  authority.  During  the 
reading  of  the  order  appointing  the  court  and  the  arraignment  the 
judge  advocate,  the  accused,  and  his  counsel  will  stand;  while  the 
court  and  the  judge  advocate  are  being  sworn  all  persons  concerned 
with  the  trial,  including  any  spectators  present,  will  stand;  when 
the  reporter,  an  interpreter,  or  a  witness  is  being  sworn  he  and  the 
judge  advocate  will  stand ;  and  when  the  judge  advocate,  the  accused, 
or  his  counsel  addresses  the  court,  he  will  rise.  (For  punishment  for 
contempts,  see  Chapter  X,  Sec.  I,  par.  173.) 

87.  Control  of  court  over  accused. — ^A  court-martial  has  no  control 
over  the  nature  of  the  arrest  or  other  status  of  restraint  of  a  prisoner 
except  as  regards  his  personal  freedom  in  its  presence.  For  the  rela- 
tion between  a  court-martial  and  the  accused  during  trial  as  regards 
arrest,  see  Chapter  V,  Section  I. 

88.  Accused  not  to  be  tried  in  irons. — The  accused  should  not  be 
brought  before  the  court  in  irons,  unless  there  are  good  reasons  to 
believe  that  he  will  attempt  to  escape  or  to  conduct  himself  in  a 
violent  manner,  but  the  fact  that  a  prisoner  has  been  tried  in  irons 
can  not  in  any  case  affect  the  validity  of  the  proceedings. 

89.  Duties  of  the  president. — A  president  of  the  court  will  not  be 
announced.  The  officer  senior  in  rank  present  will  act  as  such.  The 
president  does  not  by  virtue  of  being  such  exercise  command  of  any 
kind.  He  is  in  no  sense  the  commanding  officer  of  the  court,  and 
can  not  by  virtue  of  being  president  give  an  order  to  a  member.  As 
the  organ  of  the  court  he  gives  the  directions  necessary  to  the  regular 
and  proper  conduct  of  the  proceedings ;  but  a  failure  to  comply  with 
a  direction  given  by  him,  while  it  may  constitute  a  neglect  to  the 
prejudice  of  good  order  and  military  discipline,  can  not  properly 
be  charged  as  a  violation  of  the  sixty-fourth  article  of  war.  (Digest, 
p.  508,  VI,  G,  3.)  Neither  the  court  nor  the  president  is  authorized 
to  place  the  judge  advocate  in  arrest.    Only  the  proper  commanding 


46  MANUAL   FOR   COURTS-MAETIAL. 

officer  can  impose  an  arrest.  It  is  the  duty  of  the  commanding  officer 
to  secure  the  attendance  of  the  accused  before  the  court.  (Digest,  p. 
509,  VII,  C,  2;  id.,  VII,  C,  3.)  The  president  is  the  presiding  officer 
of  the  court,  and  as  such  is  the  organ  of  the  court  to  maintain  order 
and  conduct  its  business.  In  addition,  he  has  the  duties  and  privi- 
leges of  other  members.  He  has  an  equal  vote  with  other  members 
in  deciding  all  questions,  including  challenges,  findings,  sentence,  ac- 
quittal, and  adjournments.  He  speaks  and  acts  for  the  court  in 
every  instance  where  a  rule  of  action  has  been  prescribed  by  law, 
regulations,  or  its  own  resolution,  and  has  no  authority  to  open  or 
close  the  court  or  make  a  ruling  upon  the  admissibility  of  evidence, 
the  competency  of  witnesses,  or  method  of  procedure  without  the 
acquiescence  of  the  court  or  by  custom  of  the  service.  He  administers 
the  oath  to  the  judge  advocate  and  authenticates  by  his  signature 
all  acts,  orders,  and  proceedings  of  the  court  requirmg  it.  (See 
Winthrop,  p.  249.)  It  is  his  duty  to  take  the  proper  steps  to  insure 
prompt  trial  and  disposition  of  all  charges  referred  for  trial  and  to 
keep  the  court  advised  thereof. 

[Note. — For  duty  of  the  president  to  explain  to  the  accused  the  effect  of  a 
plea  of  guilty,  see  Chap.  IX,  Sec.  II,  "  Pleas  to  the  general  issue."] 

90.  Voting. — Members  of  a  general  or  special  court-martial,  in 
giving  their  votes,  shall  begin  with  the  junior  in  rank.  (A.  W.  31.) 
In  all  deliberations,  including  those  on  challenges,  findings,  sentence, 
acquittal,  and  adjournments,  the  law  secures  the  absolute  equality 
of  the  members,  the  president  having  no  greater  rights  in  such  mat- 
ters than  any  other  member.  A  tie  vote  on  the  findings  is  a  vote 
of  "  not  guilty  " ;  a  tie  vote  on  a  proposed  sentence  or  on  a  challenge 
or  any  objection  or  motion  is  a  vote  in  the  negative.  The  sentence 
is  not  adopted  and  the  challenge,  objection,  or  motion  is  not  sustained. 
When  the  offense  charged  includes  a  minor  offense,  voting  shall 
first  be  had  upon  the  major  offense. 

All  convictions  and  sentences  (other  than  thpse  involving  death), 
whether  by  general  or  special  court-martial,  may  be  determined  by  a 
majority  of  the  members  present.  (A.  W.  43.)  Eefusal  to  vote  on 
any  question  arising  during  the  proceedings  constitutes  a  neglect  to 
the  prejudice  of  good  order  and  military  discipline  punishable  under 
A.  W.  96.  (For  voting  on  findings  and  sentence,  see  Chap.  XII, 
Sec.  II.) 

91.  Closed  sessions. — Members  take  an  oath  not  to  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of  the  court- 
martial.  (See  A.  W.  19.)  In  order  to  avoid  disclosing  or  discov- 
ering such  vote  or  opinion  the  court  is  closed  while  voting  upon 
any  question.  When  the  court  is  closed  all  persons  (including 
the  judge  advocate)  withdraw.  In  important  cases,  where  delay 
would  ensue  due  to  the  number  of  spectators  present,  the  court  itself 
may  withdraw  to  another  room  prepared  for  the  purpose  for  delib- 
erating in  closed  session.  It  is  not  necessary,  however,  for  the  court 
to  go  into  closed  session  in  every  case  requiring  action,  where  such 


COURTS-MARTIAL. — ORGANIZATION.  47 

action  would  be  unanimous  and  business  can  properly  be  transacted 
without  disclosing  the  vote  or  opinion  of  any  member.  Thus,  on  a 
request  by  the  judge  advocate  or  the  accused  for  a  short  recess,  it  is 
proper  for  the  president  to  announce  "  without  objection,  the  request 
will  be  granted,"  or  words  to  that  effect.  Similarly,  if  the  accused 
objects  to  a  member  because  he  preferred  the  charges  and  is  the 
accuser  and  the  member  admits  the  fact,  he  may  be  excused  without 
going  into  closed  session.  Care  will  be  taken  in  such  cases  that  no 
votes  are  taken  in  open  session.  If  any  member  believes  the  matter 
should  be  passed  upon  in  closed  session,  it  is  proper  for  him  to  move 
that  the  court  be  closed,  whereupon  the  president  will  announce  that 
the  court  will  be  cleared. 

92.  Sitting  with  closed  doors. — ^A  court-martial  is  authorized,  in  its 
discretion,  to  sit  with  doors  closed  to  the  public.  Except,  however, 
when  temporarily  closed  for  deliberation,  courts-martial  in  this 
country  are  almost  invariably  open  to  the  public  during  a  trial.  But 
in  a  particular  case  where  the  offenses  charged  were  of  a  scandalous 
nature,  it  was  recommended  that  the  court  be  directed  to  sit  with 
doors  closed  to  the  public.     (Digest,  p.  516,  IX,  C.) 

93.  Change  in  membership. — Although  it  is  undesirable  to  change 
the  membership  of  a  court  during  a  trial  it  is  within  the  discretion 
of  the  appointing  officer  in  ::  proper  case,  to  relieve  members  or  ap- 
point new  members.  The  promotion  of  a  member  during  the  trial 
of  a  case  does  not  affect  his  competency  as  a  member.  He  should 
sit  according  to  his  changed  rank.  The  rule  is  that  no  member  who 
has  been  absent  during  the  taking  of  evidence  shall  thereafter  take 
part  in  the  trial ;  but  the  nonobservance  of  this  rule  shall  not  be  con- 
strued as  invalidating  the  proceedings  of  courts-martial  if  no  ob- 
jection is  made,  and  the  court  permits  the  member  to  sit.  The  rule, 
however,  should  be  complied  with  when  practicable.  Especially 
should  a  member  who  has  been  absent  during  an  important  part  of 
the  proceedings  not  be  permitted  to  resume  his  seat.  Where  a  mem- 
ber who  has  been  absent  is  permitted  to  resume  his  seat,  or  a  new 
member  is  added  after  the  trial  of  the  case  has  begun,  all  proceedings 
and  evidence  during  his  absence  should  be  read  over  to  him  in  open 
court  before  the  case  proceeds  further  and  the  record  should  show 
this  fact ;  but  in  proceedings  in  revision  the  presence  of  any  member 
who  did  not  vote  on  the  findings  and  sentence  will  invalidate  the 
proceedings  in  revision. 

Section  II. 
*       THE  JUDGE  ADVOCATE. 

94.  Selection. — The  prompt,  speedy,  and  thorough  trial  of  a  court- 
martial  case  is  principally  dependent  upon  the  judge  advocate.  He 
will,  accordingly,  be  carefully  selected.    Where  it  can  be  avoided,  no 


48  MANUAL  FOR  COURTS-MARTIAL. 

officer  will  be  detailed  as  judge  advocate  of  a  general  court-martial 
until  he  has  had  experience  as  a  member  or  as  an  assistant  judge 
advocate  of  a  court. 

95.  General  duties. — The  judge  advocate  of  a  general  or  special 
court-martial  shall  prosecute  in  the  name  of  the  United  States,  and 
shall,  under  the  direction  of  the  court,  prepare  the  record  of  its  pro- 
ceedings. (A.  W.  17.)  Before  the  court  assembles  the  judge  advo- 
cate will  obtain  a  suitable  room  for  the  court,  see  that  it  is  in  order, 
procure  the  requisite  stationery,  summon  necessary  witnesses,  make 
a  preliminary  examination  of  the  latter,  and,  as  far  as  possible,  sys- 
tematize his  plans  for  conducting  the  case.  During  the  trial  he  exe- 
cutes all  orders  of  the  court;  reads  the  appointing  order  and  any 
modifying  orders  to  the  accused;  swears  the  members  of  the  court, 
the  reporter,  interpreter,  and  all  witnesses;  arraigns  the  accused; 
examines  witnesses ;  keeps  or  superintends,  under  the  direction  of  the 
court,  the  keeping  of  a  complete  and  accurate  record  of  the  proceed- 
ings ;  and  affixes  his  signature  to  each  day's  proceedings.  Whenever 
the  court  adjourns  to  meet  at  the  call  of  the  president,  the  judge 
advocate  will  notify  the  members  of  the  time  designated  by  the  presi- 
dent for  reassembling.  In  conjunction  with  the  president  of  the 
court,  he  authenticates  the  record  by  his  signature  and,  at  the  end  of 
the  trial,  transmits  the  same  to  the  reviewing  authority.  In  case  the 
record  can  not  be  authenticated  by  the  judge  advocate  by  reason  of 
his  death,  disability,  or  absence,  it  shall  be  signed  by  the  president 
and  an  assistant  judge  advocate,  if  any ;  and  if  there  be  no  assistant 
judge  advocate,  or  in  case  of  his  death,  disability,  or  absence,  then 
by  the  president  and  one  other  member  of  the  court.    (A.  W.  33.) 

96.  Dnty  toward  accused. — Should  the  accused,  for  any  reason,  not 
be  represented  by  counsel,  the  judge  advocate  shall,  from  time  to 
time  throughout  the  proceedings,  advise  him  of  his  legal  rights. 
(A.  W.  17.)     He  should— 

(a)  Acquaint  the  prisoner  with  the  accusations  against  him; 
(h)  Inform  him  of  his  right  to  have  counsel; 

(c)  Inform  him  of  his  right  to  testify  in  his  own  behalf;  and 

(d)  Inform  him  of  his  right  to  have  a  copy  of  the  charges. 

He  may  ask  a  prisoner  how  he  intends  to  plead,  but  he  should  in 
no  case  try  to  induce  him  to  plead  guilty,  or  leave  him  to  infer  that 
if  he  does  so  his  punishment  will  be  lighter.  (Winthrop,  p.  293.) 
When  the  accused  determines  to  plead  guilty  the  judge  advocate 
should  advise  him  of  his  right  to  introduce  evidence  in  explanation 
of  his  offense,  and  should  assist  him  in  securing  it.  During  the  trial 
he  will  see  that  the  accused  has  full  opportunity  toiMerpose  such 
pleas  and  make  such  defense  as  may  best  bring  out  the  facts,  the 
merits,  or  the  extenuating  circumstances  of  his  case,  y  In  so  far  as 
such  action  may  be  taken  without  prejudice  to  the  rignts  of  the  ac- 


COUETS-MARTIAIi ORGANIZATION.  49 

cused,  any  advice  given  him  by  the  judge  advocate  should  be  given 
or  repeated  in  open  court  and  noted  upon  the  record. 

97.  Examination  of  charges. — The  judge  advocate  will  note  and 
report  to  the  convening  authority  an}^  irregularity  in  the  order  con- 
vening the  court  and  see  that  the  charges  are  technically  and  cor- 
rectly drawn.  He  may  ordinarily  correct  obvious  mistakes  of  form, 
or  slight  errors  in  names,  dates,  amounts,  etc.,  but  he  will  not,  without 
the  authority  of  the  convening  officer,  make  substantial  amendments 
in  the  allegations,  or — least  of  all — reject  or  withdraw  a  charge  or 
specification  or  substitute  a  new  and  distinct  charge  for  one  trans- 
mitted to  him  for  trial  by  the  proper  superior.  (Digest,  p.  496, 
IV,  B,  1.)  It  is  the  duty  of  the  president  as  well  as  the  judge 
advocate  of  every  court-martial  to  examine  carefully  the  indorse- 
ment on  the  charges  when  referred  for  trial  in  order  that  an  accused 
may  not  be  brought  to  trial  before  the  wrong  court. 

98.  Whole  truth  to  be  presented.-yThroughout  the  trial  the  judge 
advocate  should  do  his  utmost  to  present  the  whole  truth  of  the  mat- 
ter in  question.  He  should  oppose  every  attempt  to  suppress  facts 
or  to  distort  them,  to  the  end  that  the- evidence  may  so  exhibit  the 
case  that  the  court  may  render  impartial  justice. 

99.  Legal  adviser  of  the  court. — While  the  court  is  in  open  session  the 
judge  advocate  should  respectfully  call  the  attention  of  the  court 
to  any  apparent  illegalities  in  its  action,  and  to  any  apparent  irregu- 
larities in  its  proceedings.  He  should  act  as  legal  adviser  of  the 
court  so  far  as  to  give  his  opinion  upon  any  point  of  law  arising 
during  the  trial,  when  it  is  asked  for  by  the  court,  but  not  otherwise. 
(See,  however,  par.  197,  p.  96.)  When  his  legal  advice  or  assistance 
is  required  it  will  be  obtained  in  open  court.  In  case  the  accused 
desires  to  plead  guilty  the  judge  advocate  will,  whenever  necessary, 
invite  the  attention  of  the  president  of  the  court  to  the  fact  that 
the  effect  of  such  plea  must  be  explained  to  him.  (See  Chap.  IX, 
Sec.  II,  "  Pleas  to  the  general  issue.") 

100.  Freedom  in  conducting  case. — The  judge  advocate  should  be  left 
free  by  the  court  to  introduce  his  evidence  in  such  order  as  he  sees 
fit,  and  in  general  to  bring  cases  to  trial  in  such  order  as  he  deems 
expedient.  (Winthrop,  pp.  281-283.)  But  while  it  is  not  the 
province  of  the  court  to  direct  or  control  the  judge  advocate  in  his 
prosecution  of  the  case,  it  is  responsible  for  the  thorough  investiga- 
tion of  the  case,  and  need  not  content  itself  with  the  evidence  brought 
out  by  the  prosecution  and  defense.  It  is  proper  for  the  court  as 
a  body  or  for  any  member  to  ask  questions  of  a  witness  if  it  is  be- 
lieved the  examination  already  submitted  has  failed  fully  to  develop 
the  case.  Usually  such  questions  are  not  asked  until  after  the 
prosecution  and  defense  have  fully  completed  their  examination  of 

91487°— 17 5 


50  ,  MANUAL  FOR  COUETS- MARTIAL. 

the  witness.  The  court  may  direct  that  the  judge  advocate  recall  a 
witness,  secure  the  attendance  of  a  particular  witness,  or  that  he 
introduce  evidence  on  a  particular  point.  It  is  the  duty  of  the  court 
to  take  such  action  if  it  believes  that  thereby  the  facts  in  the  case 
will  be  more  clearly  presented. 

101.  Closed  sessions. — Whenever  a  general  or  special  court-martial 
shall  sit  in  closed  session,  the  judge  advocate  and  the  assistant  judge 
advocate,  if  any,  shall  withdraw ;  and  when  their  legal  advice  or  their 
assistance  in  referring  to  the  recorded  evidence  is  required,  it  shall 
be  obtained  in  open  court  and  in  the  presence  of  the  accused  and  of 
his  counsel  if  there  be  any.  (A.  W.  30.)  If  through  mistake  or 
inadvertence  the  judge  advocate  should  be  present  during  the  whole 
or  a  part  of  a  closed  session  of  the  court,  such  irregularity  is,  subject 
to  the  provisions  of  A.  W.  37,  ground  for  a  disapproval  of  the  pro- 
ceedings by  the  reviewing  authority,  but  it  does  not  deprive  the  court 
of  jurisdiction  and  courts  of  the  United  States  do  not  interfere  in 
such  a  case  to  release  a  prisoner  by  writ  of  habeas  corpus.  (Ex 
parte  Tucker,  212  Fed.  Rep.,  569;  see  also  A.  W.  37.) 

102.  Accuser  or  prosecutor. — The  judge  advocate  is  not  challengeable ; 
but  in  case  of  personal  interest  in  the  trial  or  of  personal  hostility  to- 
ward the  accused  he  should  apply  to  the  convening  authority  to  be 
relieved. 

103.  Expediting  trials. — Charges  to  be  tried  by  a  general  or  special 
court-martial  are  referred  to  the  judge  advocate  of  the  court.  It  is 
his  duty  to  bring  them  to  trial  promptly.  In  most  cases  tried  by 
court-martial  the  facts  are  few  and  simple,  and  the  witnesses  are 
officers  or  soldiers  stationed  at  the  post  where  the  trial  is  had. 
Usually  the  members  of  the  court,  judge  advocate,  and  accused  and  his 
counsel  are  stationed  at  the  same  post.  In  such  cases  the  prelimi- 
nary investigation,  reference  for  trial,  and  the  trial  should  take  place 
promptly.  If  the  other  official  duties  of  the  judge  advocate  and  coun- 
sel do  not  leave  time  to  prepare  cases  properly  and  to  bring  them  to 
trial  promptly  the  president  will  advise  the  commanding  officer  with 
a  view  to  their  being  relieved  from  other  duties. 

104.  Weekly  reports. — On  Saturday  of  each  week  each  judge  advo- 
cate of  a  general  court-martial  will  report,  through  the  president  of 
the  court  and  the  commanding  officer,  to  the  appointing  authority,  a 
list  of  charges  on  hand,  showing  the  date  of  receipt  of  each ;  and  if 
any  case  has  been  in  the  hands  of  the  judge  advocate  for  one  week  or 
more  and  the  record  of  trial  has  not  been  forwarded  to  the  convening 
authority,  the  report  will  include  a  statement  of  the  reasons  for  the 
delay.  No  record  need  be  made  of  this  report  by  the  president  of  the 
court  or  the  commanding  officer. 

105.  Detail  of  orderly. — The  commanding  officer  will  detail,  when 
necessary,  suitable  soldiers  as  clerks  or  orderlies  to  assist  the  judge 


COUBTS-MARTIAL ORGANIZATION.  51 

advocate  of  a  general  or  special  court-martial  or  military  commission, 
or  the  recorder  of  a  court  of  inquiry. 

Section  III. 
ASSISTANT  JUDGE  ADVOCATE. 

106.  Appointment. — The  authority  appointing  a  general  court- 
martial  shall  appoint  one  or  more  assistant  judge  advocates  when 
necessary.  (A.  W.  11.)  An  assistant  judge  advocate  of  a  general 
court-martial  shall  be  competent  to  perform  any  duty  devolved  by 
law,  regulation,  or  the  custom  of  the  service  upon  the  judge  advocate 
of  the  court.     (A.  W.  116.) 

107.  Duties. — An  assistant  judge  advocate  will  perform  such  duties 
in  connection  with  the  trial  as  the  j^dge  advocate  may  designate.  Or- 
dinarily he  will  be  expected  to  relieve  the  judge  advocate  of  minor 
details,  such  as  arranging  for  a  place  of  meeting  of  the  court,  sta- 
tionery, and  messenger  service,  stenographers  and  interpreters, 
subpoenaing  witnesses,  and  notifying  the  court  of  the  place  and 
hour  of  meeting.  During  trial  he  will  be  expected  to  see  that 
witnesses  are  on  hand  when  needed,  that  all  details  of  procedure  are 
observed  and  the  record  accurately  kept.  He  may  also  be  intrusted 
by  the  judge  advocate  with  the  investigation  before  trial  and  proof 
during  trial  of  any  special  phase  of  the  charges,  or  he  may,  where  the 
judge  ad^cate  is  otherwise  engaged,  take  charge  of  the  complete 
trial  of  a  case.  (See  also  A.  W.  33.)  While  the  judge  advocate  and 
assistant  judge  advocate  will  ordinarily  be  present  during  trial,  if 
their  duties  require  the  presence  of  either  of  them  elsewhere,  he  may 
be  excused  by  the  court;  but  the  fact  of  his  withdrawal  or  absence, 
the  reason  therefor,  and  his  return  to  the  court  will  be  noted  in  the 
record.  (See  form  for  record  of  a  general  court-martial,  Ap- 
pendix 6.) 

Wherever,  in  this  Manual  the  judge  advocate  of  a  general  court- 
martial  is  mentioned,  the  term  will  be  understood  to  include  assistant 
judge  advocates,  if  any,  unless  the  context  shows  clearly  that  a  dif- 
ferent sense  is  intended. 

Section  IT. 

COUNSEL. 

108.  Appointment. — The  accused  shall  have  the  right  to  be  repre- 
sented before  a  general  or  special  court-martial  by  counsel  of  his  own 
selection,  for  his  defense,  if  such  counsel  be  reasonably  available.  (A. 
W.  17.)  Civilian  counsel  will  not  be  provided  at  the  expense  of  the 
Government.  (Digest,  p.  506,  V,  G,  5.)  Should  the  accused  request 
the  appointment  as  his  counsel  of  an  officer  stationed  at  the  statioa 


52  MANUAL  FOR  COURTS-MAETIAL. 

where  the  court  sits,  and  such  officer  be  not  a  member  of  the  court, 
the  commanding  officer  will  appoint  such  officer  as  counsel  if  he  is 
reasonably  available.  Should  the  commanding  officer  decide  that 
the  officer  desired  by  the  accused  is  not  reasonably  available,  the  ac- 
cused may  appeal  to  the  officer  appointing  the  court,  whose  decision 
shall  be  final.  If  the  counsel  desired  by  the  accused  is  not  under  the 
control  of  the  commanding  officer  where  the  trial  is  held,  application 
for  counsel  will  be  submitted  by  the  accused  in  writing  to  the  ap- 
pointing authority,  whose  decision  as  to  whether  the  officer  desired 
is  "reasonably  available"  is  final.  Officers  of  the  Judge  Advocate 
General's  Department  are  not  available  for  appointment  as  counsel 
for  the  defense  in  trials  by  courts-martial. 

109.  Duty  of  officer  as  counsel. — An  officer  acting  as  counsel  before  a 
general  or  special  court-martial  should  perform  such  duties  as 
usually  devolve  upon  the  counsel  for  a  defendant  before  civil  courts 
in  criminal  cases.  He  should  guard  the  interests  of  the  accused  by 
all  honorable  and  legitimate  means  known  to  the  law,  but  should  not 
obstruct  the  proceedings  with  frivolous  and  manifestly  useless  ob- 
jections or  discussions. 

110.  Rig^ht  to  interview  the  accused. — An  accused,  even  if  in  close 
arrest,  will  be  allowed  to  have  such  interviews  with  his  counsel,  mili- 
tary or  civil,  as  may  be  required  in  order  to  prepare  his  defense. 
Counsel  will  also  be  permitted  to  have  interviews  Avith  any  other 
person  who  may  be  a  wiitness  for  the  accused,  or  whose  ^knowledge 
of  facts  may  be  useful  to  the  accused  in  preparing  for  trial. 

111.  Witnesses,  how  questioned  during  trial. — If  the  judge  advocate 
personally  prepares  the  record  the  counsel  will  be  required  to  re- 
duce his  questions  and  arguments  to  writing;  but  if  the  court  has  a 
stenographic  reporter,  the  counsel  will  be  allowed  to  question  wit- 
nesses and  address  the  court  orally. 

Section  V.     ' 
REPORTER. 

112.  Employment. — ^Under  such  regulations  as  the  Secretary  of  War 
may  from  time  to  time  prescribe,  the  president  of  a  court-martial 
or  military  commission,  or  a  court  of  inquiry,  shall  have  power  to 
appoint  a  reporter,  who  shall  record  the  proceedings  of  and  testi- 
mony taken  before  such  court  or  commission  and  may  set  down  the 
same,  in  the  first  instance,  in  shorthand.  (A.  W.  115.)  Reporters 
will  be  employed  only  when  authorized  by  the  appointing  authority. 
They  will  not  be  authorized  for  special  courts-martial,  except  when 
the  appointing  authority  directs  that  the  testimony  be  reduced  to 
writing. 

[Note. — For  form  of  oath  for  reporter  see  par.  135.] 


COURTS-MARTIAL ORGANIZATION.  53 

113.  Compensation — Decisions. — The  reporter  shall  be  paid  at  the 
following  rates  of  compensation  by  the  Quartermaster  Corps  on 
vouchers  certified  to  be  correct  by  the  judge  advocate  or  recorder: 

(a)  For  each  case  not  to  exceed  $1  an  hour  for  time  actually  spent 
in  court  during  the  trial  or  hearing,  except  when  the  court  or  com- 
mission sits  less  than  three  hours  during  the  first  day,  when  the 
allowance  for  such  day  shall  be  $3.  Time  will  be  reckoned  to  the 
nearest  half  of  an  hour. 

(h)  Fifteen  cents  for  each  100  words  for  transcribing  notes  and 
making  that  portion  of  the  original  record  which  is  typewritten; 
but  no  allowance  shall  be  made  for  the  first  carbon  copy  of  that 
portion  of  the  record  which  is  typewritten  or  for  original  papers 
which  are  appended  as  exhibits. 

(c)  Ten  cents  for  each  100  w^ords  for  copying  papers  material 
to  the  inquiry,  and  2  cents  for  each  100  words  for  each  carbon  copy 
of  the  same,  when  ordered  by  the  court  or  commission  for  its  use. 

(d)  Two  cents  for  each  100  words  for  the  second  and  each  addi- 
tional carbon  copy  of  the  record  when  authorized  by  the  convening 
authority. 

(e)  Except  for  such  part  of  the  journey  as  may  be  covered  by 
Government  transportation,  mileage  at  the  rate  authorized  for  a 
civilian  witness  not  in  Government  employ  and  $3  a  day  for  ex- 
penses when  the  judge  advocate  or  recorder  keeps  him,  at  his  own 
expense,  away  from  his  usual  place  of  employment  for  twenty-four 
hours  or  more,  on  public  business  referred  to  the  court  or  commission, 
shall  be  allowed  the  reporter  for  himself,  and,  when  ordered  by  the 
court  or  conomission,  for  each  necessary  assistant. 

(/)  When  a  stenographic  reporter  is  authorized  for  a  special 
court-martial  only  one  copy  of  the  proceedings  will  be  required,  and 
for  transcribing  notes  and  making  that  part  of  the  record  of  a  trial 
by  special  court-martial  which  is  typewritten,  the  reporter,  other 
than  an  enlisted  man,  shall  receive  13  cents  for  each  100  words. 

[Note. — The  following  decisions  regarding  compensation  of  reporters  will  be 
observed  in  preparing  vouchers: 

(a)  The  payment  to  a  reporter  of  $3  for  each  case  completed  by  him  is  not 
authorized  when  more  than  one  case  is  disposed  of  in  one  day,  each  case  re- 
quiring less  than  three  hours  in  which  to  be  completed,  but  simply  guarantees 
the  reporter  at  least  $3  for  each  day  that  the  court  or  commission  sits  when 
a  new  case  is  taken  up  for  that  day.     (Cir.  81,  War  Dept,  1908.) 

(&)  In  determining  the  period  for  which  a  reporter  is  entitled  to  the  allow- 
ance of  $3  a  day  for  expenses  when  kept  away  from  his  usual  place  of  employ- 
ment time  should  be  counted  from  the  date  on  which  he  is  required  to  leave 
his  usual  place  of  business  by  the  terms  of  his  employment  to  the  date  of 
his  return  thereto,  provided  there  be  no  unnecessary  delay  in  the  travel  to 
and  from  the  place  where  the  court  meets.  (Par.  1244,  Manual  Q.  M.  Corps, 
1916.) 

(c)  The  fact  that  a  reporter  returns  each  night  to  his  home  does  not  pre- 
clude the  view  that  he  was  kept  away  from  his  place  of  business  for  24  hours. 
He  is  not,  however,  entitled  to  mileage  for  such  journeys  unless  the  sessions 
Of  the  court  are  held  on  nonconsecutive  dayS.     (Op.  J.  A.  G.,  Sept.  7,  1910.) 


64  MANUAL   FOR   COURTS- MARTIAL. 

(d)  A  reporter  serving  two  separate  courts-martial  on  the  same  day  is  en- 
titled to  have  his  allowances  (except  mileage)  computed  separately  for  each 
court.     (Op.  J.  A.  G.,  Oct.  13,  1910.) 

(e)  A  reporter  duly  employed,  but  who,  after  arrival  at  court,  performs  no 
service,  owing  to  adjournment,  is  entitled  to  mileage,  $3  for  constructive  service, 
and  also  to  the  additional  $3  if  kept  away  from  place  of  business  for  24  hours. 
(Op.  J.  A.  G.,  Feb.  18,  1911;  June  4,  1914.)      ■ 

(/)  The  abbreviations  "  Q.,"  standing  for  the  word  question,  and  "A.," 
standing  for  the  word  answer,  and  all  dates  as  "  25th  "  and  "  1914  "  will  each 
be  counted  as  one  w^ord.  Punctuation  marks  will  not  be  counted  as  a  word. 
It  is  not  necessary  for  the  judge  advocate  to  count  the  actual  number  of 
words  on  every  page  to  justify  him  in  certifying  the  account  of  the  reporter. 
He  may  ascertain  the  total  number  of  words  by  counting  the  w^ords  on  a 
sufficient  number  of  pages  to  enable  him  to  ascertain  a  fair  average  of  the 
number  of  words  on  a  page  and  then  ascertain  the  total  by  multiplying  this 
average  by  the  number  of  pages.     (Op.  J.  A.  G.,  Oct.  22,  1909;  Feb.  8,  1915.)] 

114.  Disposition  of  vouchers. — The  original  voucher  for  payment  of 
the  reporter  will  be  properly  completed  and  certified  by  the  judge 
advocate  and  will  be  sent  for  payment  to  the  nearest  disbursing 
quartermaster.  A  carbon  copy  of  the  voucher  will  be  forwarded 
with  the  record  for  the  information  of  the  appointing  authority. 

[Note. — For  form  of  voucher  for  payment  of  reporter,  see  Appendix  18.] 

115.  Detail  of  soldier. — A  soldier  may  be  detailed  to  serve  as  a  steno- 
graphic reporter  for  general  courts-martial,  courts  of  inquiry,  and 
military  commissions,  and  while  so  serving  shall  receive  extra  pay  at 
the  rate  of  not  exceeding  five  cents  for  each  one  hundred  words  taken 
in  shorthand  and  transcribed,  such  extra  pay  to  be  met  from  the 
annual  appropriation  for  expenses  of  courts-martial.  (Act  of  Aug. 
25,  1912,  37  Stat.,  575.)  Such  detail  will  be  made  only  when  a 
reporter  is  authorized  by  the  appointing  authority. 

116.  Time  limit  for  completing  record. — The  judge  advocate  or 
recorder  shall  require  the  reporter  to  furnish  the  typewritten  record 
of  the  proceedings  of  each  session  of  the  court  or  commission  (together 
with  one  carbon  copy  of  the  same)  not  later  than  twenty-four  hours 
after  the  adjournment  of  that  session.  The  complete  record  will  be 
finished,  indexed,  bound,  and  ready  for  authentication  not  later  than 
forty-eight  hours  after  the  completion  of  its  action  by  the  court  or 
commission  on  the  merits  of  the  case  or  hearing. 

117.  Carbon  copies  of  the  record. — Whenever  a  record  of  a  trial  of 
general  court-martial  is  to  be  typewritten  by  a  reporter,  the  judge 
advocate  will  inform  the  accused  of  his  right  to  demand  a  copy  of 
the  record,  and  will  require  of  him  a  statement  as  to  whether  or  not 
he  desires  a  copy.  If  the  answer  be  in  the  affirmative,  the  judge 
advocate  will  cause  the  reporter  to  prepare  a  carbon  copy ;  this  copy 
will  be  turned  over  to  the  accused.  If  the  answer  be  in  the  negative, 
no  carbon  copy  will  be  prepared.  In  either  case,  notation  of  the 
action  taken  will  be  made  on  the  index  sheet  of  the  record.  ( See  form 
for  record  of  general  court-martial.  Appendix  6.)  In  case  of  joint 
trials,  the  judge  advocate  will,  in  case  a  stenographer  is  employed, 


COUKTS-MARTIAL ORGANIZATION.  55 

have  one  copy  of  the  record  made  for  each  of  the  accused  requesting 
the  same.  When  records  of  trial  by  general  court-martial  are  type- 
written, the  copyable  ribbon  will  be  used.     {C.  M.  V.  M.,  No.  1.) 

118.  Extra  compensation  for  clerical  duties. — No  person  in  the  mili- 
tary or  civil  service  of  the  Government  can  lawfully  receive  extra 
compensation  for  clerical  duties  performed  for  a  military  court 
except  as  provided  in  paragraph  115,  supra.     (A.  R.  987.) 

Section  VI. 
INTERPRETER. 

119.  Employment  and  pay. — Under  such  regulations  as  the  Secretary 
of  War  may  from  time  to  time  prescribe,  the  president  of  a  court- 
martial  or  military  commission,  or  court  of  inquiry,  or  a  summary 
court,  may  appoint  an  interpreter,  who  shall  interpret  for  the  court 
or  commission.  (A.  W.  115.)  Interpreters  may  be  employed  when- 
ever necessary  without  application  to  the  appointing  authority. 
They  will  be  allowed  the  pay  and  allowances  of  civilian  witnesses, 
which  will  be  paid  by  the  Quartermaster  Corps  on  vouchers  certified 
by  the  judge  advocate  or  recorder. 

[Note. — For  oatli  of  interpreter  see  par.  136.] 


CHAPTER  YIII. 
COURTS-MARTIAL— ORGANIZATION. 

(Continued.) 


Pago. 

Section  I:  Challenges 57 

120.  Occasion  for 57 

121.  Grounds  for  challenge 58 

(a)  Principal  challenges,  (1)  to  (8) 58 

(6)  Challenges  for  favor 58 

122.  Challenge  of  new  member 58 

123.  Challenge  by  judge  advocate 59 

124.  Member  can  not  challenge 59 

125.  Procedure  upon  challenges 59 

126.  Member  disqualified  but  not  challenged 59 

127.  Waiver  of  objection 59 

128.  Liberality  required 59 

129.  Member  as  accuser  or  witness  for  the  prosecution 60 

130.  Member  signing  charges — ^when  accuser 60 

131.  Member  of  court  as  witness 60 

Section  II:  Oaths 61 

132.  Oath  of  members 61 

(a)  Oath,  (6)  Affirmation,  (c)  Court  sworn  for  each  case,  (d)  Addi- 
tional ceremony,  (e)  Decorum  in  administering  oath -. 61 

133.  Oath  of  judge  advocate- 62 

134.  Oath  of  witness 62 

(a)  Oath,  (6)  Swearing  judge  advocate 62 

135.  Oath  of  reporter 62 

136.  Oath  of  interpreter 62 

137.  Oath  to  test  competency 62 

138.  Oaths  for  administrative  purposes 63 

(a)  R.  S.  183,  (&)  A,  W.  114.. 63 

Section  III :  Continuances 63 

139.  Authority  for 63 

140.  Reason  for  application  to  be  stated 63 

141.  Number  of  continuances 64 

Section  IV:  Completion  of  organization 64 

142.  When  accomplished 64 


Section  I. 
CHALLENGES. 


120.  Occasion  for. — The  composition  of  the  court-martial  having  been 
nade  known  to  the  accused  by  the  reading  of  the  appointing  order, 
together  with  any  orders  which  have  operated  to  modify  the  compo- 

57 


58  MANUAL  FOR  COURTS-MARTIAL. 

sition  of  the  court  as  originally  constituted,  he  is  asked  by  the  judge 
advocate  whether  he  objects  to  being  tried  by  any  member  present 
named  in  the  order  and  modifying  orders.  If  his  reply  be  in  the 
negative,  the  court  and  judge  advocate  are  sworn;  if,  on  the  other 
hand,  the  accused  has  objection  to  a  member,  he  exercises  his  right  in 
this  respect  by  challenging,  in  turn,  each  member  to  whom  he  objects. 
Members  of  a  general  or  special  court-martial  may  be  challenged  by  the 
accused,  but  only  for  cause  stated  to  the  court.  The  court  shall  deter- 
mine the  relevancy  and  validity  thereof,  and  shall  not  receive  a  chal- 
lenge to  more  than  one  member  at  a  time.  (A.  W.  18.)  Neither  a 
summary  court  officer  nor  the  judge  advocate  of  a  general  or  special 
court-martial  is  subject  to  challenge.  (Digest,  p.  502,  IV,  N;  Davis, 
p.  85,  n,  3.) 

[Note. — The  various  classes  of  challenges  recognized  at  common  law  have 
been  practically  reduced  in  courts-martial  practice  to  two,  viz,  (1)  principal 
challenges,  or  those  where  the  member  must  be  excused  upon  proof  of  the 
ground  for  challenges  as  alleged;  (2)  for  favor,  where  the  court  must  decide 
whether  the  facts  proved  constitute  cause  to  excuse  the  member.] 

121.  Grounds  for  challenge — (a)  Principal  challenges. — In  the  follow- 
ing cases  a  member  will  be  excused  when  challenged  upon  proof  of 
the  fact  as  alleged : 

(1)  That  he  sat  as  a  member  of  a  court  of  inquiry  which  investi- 
gated the  charges. 

(2)  That  he  has  personally  investigated  the  charges  and  expressed 
an  opinion  thereon,  or  that  he  has  formed  a  positive  and  definite 
opinion  as  to  the  guilt  or  innocence  of  the  accused. 

(3)  That  he  is  the  accuser. 

(4)  That  he  will  be  a  witness  for  the  prosecution. 

(5)  That  (upon  a  rehearing  of  the  case)  he  sat  as  a  member  on  the 
former  trial. 

(6)  That,  in  the  case  of  the  trial  of  an  officer,  the  member  will  be 
promoted  by  the  dismissal  of  the  accused. 

(7)  That  he  is  related  by  blood  or  marriage  to  the  accused. 

(8)  That  he  has  a  declared  enmity  against  the  accused. 

(b)  Challenges  for  favor. — Where  prejudice,  hostility,  bias,  or  inti- 
mate personal  friendship  are  alleged  it  is  for  the  court,  after  hearing 
the  grounds  for  challenging  stated  and  the  reply,  if  any,  of  the  chal- 
lenged member,  as  well  as  any  other  evidence  presented,  to  determine 
whether  the  grounds  stated  and  proved  or  admitted  are  sufficient  in 
fact  to  disqualify  a  challenged  member. 

122.  Challenge  of  new  member. — Where  new  members  join  or  are 
added  to  the  court  after  its  organization  the  order  detailing  such  new 
members  should  be  read  to  the  accused  and  he  should  be  given  full 
opportunity  to  challenge.  The  record  will  show  affirmatively  that  the 
right  has  been  accorded  the  accused  to  challenge  every  member  of  the 
court. 


COURTS-MARTIAL — ORGANIZATION.  59 

123.  Challenge  by  judge  advocate. — There  is  no  statutory  authority 
for  a  challenge  by  the  judge  advocate,  but  under  the  custom  of  the 
service  after  the  accused  has  fully  exercised  his  right  of  challenge 
the  judge  advocate  may  also  challenge  for  cause  in  the  same  manner 
as  the  accused.     (Digest,  p.  502,  IV,  O.) 

124.  Member  can  not  challenge. — There  is  no  authority  of  law  or  cus- 
tom of  the  service  for  a  member  of  a  court-martial  to  challenge 
another  member,  but  where  one  member  has  knowledge  of  the  fact 
that  another  is  the  accuser  in  the  case  or  will  be  a  witness  for  the 
prosecution  he  will  bring  the  fact  to  the  attention  of  the  court  in 
order  that  proper  action  may  be  taken.     (See  par.  129,  below.) 

125.  Procedure  upon  challenges. — A  positive  declaration  by  a  member 
challenged  on  the  ground  of  prejudice  or  interest  that  he  is  not 
prejudiced  against  the  accused  nor  interested  in  the  case  is  ordi- 
narily satisfactory  to  the  accused,  and,  in  the  absence  of  material 
evidence  in  support  of  the  objection,  will  justify  the  court  in  over- 
ruling it.  If,  however,  the  statement  is  unsatisfactory,  or  the  mem- 
ber makes  no  response,  the  accused  may  offer  testimony  in  support 
of  his  challenge  or  may  subject  the  challenged  member  to  an  exami- 
nation under  oath  as  to  his  competency  as  a  member.  In  such  a  case 
the  judge  advocate  administers  the  oath  to  the  challenged  member. 
The  accused  and  other  witnesses  may  be  cross-examined,  witnesses 
may  be  introduced  in  rebuttal  by  the  judge  advocate  and  arguments 
may  be  made.  The  whole  proceedings,  will,  in  the  case  of  a  general 
court-martial,  appear  in  the  record.  During  the  deliberation  of  the 
court  the  challenged  member  will  withdraw.  If  but  four  mem- 
bers remain  they  may  pass  upon  the  challenge.    (  See  Chap.  II,  Sec.  II. ) 

[Note. — For  form  of  oath  to  be  administered  to  a  challenged  member  see 
par.  137.] 

126.  Member  disqualified  but  not  challenged. — In  the  absence  of  a  chal- 
lenge the  court  of  itself  can  not  excuse  a  member  from  sitting  on 
the  trial  of  a  case,  but  a  member  not  challenged,  who  thinks  himself 
disqualified  for  reasons  other  than  those  indicated  in  paragraph  129, 
below,  may  announce  in  open  court  his  supposed  disqualification,  in 
order  that  he  may  be  challenged;  or  he  may  apply  to  the  appoint- 
ing authority  to  be  relieved. 

127.  Waiver  of  objection. — The  rule  is  that  challenges  should  be  made 
before  the  arraignment,  and  if  an  objection  to  the  comptency  of  a 
member  was  known  at  that  time  and  not  made,  it  will  be  considered 
as  waived;  but  if  the  cause  of  a  member's  incompetency  was  not 
known  at  the  time  of  arraignment  or  did  not  arise  until  later,  the 
court  will  entertain  a  challenge  based  on  such  cause,  at  any  stage 
of  the  proceedings. 

128.  Liberality  required. — Courts  should  be  liberal  in  passing  upon 
challenges,  but  they  will  not  entertain  an  objection  that  is  not  spe- 


60  MANUAL  FOR  COURTS-MARTIAL. 

cific,  and  they  should  be  reluctant  to  sustain  one  upon  the  mere 
assertion  of  the  accused,  except  where  it  is  admitted  by  the  chal- 
lenged member. 

129.  Member  as  accuser  or  witness  for  the  prosecution. — No  officer  shall 
be  eligible  to  sit  as  a  member  of  a  general  or  special  court-martial 
when  he  is  the  accuser  or  a  witness  for  the  prosecution.  (A.  W. 
8,  9.)  After  the  accused  is  brought  before  the  court,  preferably 
before  the  court  is  sworn,  any  member  thereof  who  is  or  believes 
himself  to  be  the  accuser  in  the  case  will  formally  announce  that 
fact  to  the  court^  whereupon  he  will  be  excused.  AVhen  the  accused, 
his  counsel,  the  judge  advocate,  or  any  member  of  the  court,  at  any 
time  before  the  finding,  shall  have  reason  to  believe  that  any  member 
thereof  is  the  accuser  in  the  case,  or  may  be  called  as  a  witness  for 
the  prosecution,  such  belief  shall  be  communicated  to  the  court,  and, 
if  the  court,  after  hearing  the  facts,  find  that  such  member  is  the 
accuser  or  is  to  be  called  as  a  witness  for  the  prosecution,  he  shall 
be  excused.  If  at  any  stage  of  the  proceedings  prior  to  the  findings 
any  member  of  the  court  be  called  as  a  witness  for  the  prosecution, 
he  shall,  before  qualifying  as  a  witness,  be  excused  from  further 
duty  as  a  member. 

130.  Member  signing  charges — ^When  accuser. — Whether  or  not  an 
officer  is  the  accuser  in  a  particular  case  is  a  question  of  fact.  If, 
notwithstanding  his  ineligibility,  he  does  sit  as  a  member  of  a  gen- 
eral or  special  court-martial,  the  proceedings  are  necessarily  invalid. 
(A.  W.  8,  9;  Op.  J.  A.  G.,  Oct.  11,  1913;  id.,  Nov.  13,  1913,  Bull. 
38,  War  Dept.,  1913,  p.  6.)  An  officer  may  be  ordered  by  superior 
authority  to  prefer  and  sign  a  charge.  The  action  of  the  officer 
preferring  and  signing  the  charge  may  be  purely  ministerial  and 
represent  no  conviction  whatever  on  his  part  that  an  offense  has  been 
committed,  or  that  if  an  offense  has  been  committed  it  was  committed 
by  the  person  charged.  In  such  a  case  the  accuser  is  not,  in  fact,  the 
officer  signing  the  charge,  but  the  officer  who  directs  the  preparation 
and  signing  of  the  charge.  The  former  is,  therefore,  not  within  the 
prohibition  of  the  statute.  The  officer  who  has  signed  the  charge  in 
a  particular  case  is,  however,  prima  facie^  the  accuser  in  that  case, 
and  therefore  ineligible  to  sit  as  a  member  of  the  trial  court.  (Op. 
J.  A.  G.,  Feb.  20, 1914,  Bull.  8,  War  Dept.,  1914,  p.  6.)  If  in  such  a  case 
the  court  should  decide  that  he  is  eligible,  all  the  evidence  upon  which 
the  court  reached  its  decision  will,  in  the  case  of  a  general  court- 
martial,  be  made  of  record,  and  in  the  case  of  a  special  court-martial 
the  record  will  show  that  evidence  touching  the  eligibility  of  the 
officer  was  heard  by  the  court  and  the  finding  arrived  at  thereon. 

131.  Member  of  court  as  witness. —  {a)  For  the  'prosecution. — No 
officer  shall  be  eligible  to  sit  as  a  member  of  a  general  or  a  special 
court-martial  who  is  a  witness  for  the  prosecution.     (A.  W.  8,  9; 


"COURTS-MAETIAL ORGANIZATION.  61 

Bull.  38,  War  Dept.,  1913,  p.  6.)  In  any  case  where  the  proceedings 
of  a  court  are  invalidated  by  reason  of  the  failure  to  excuse  a  mem- 
ber who  is  the  accuser  or  a  witness  for  the  prosecution  a  new  trial 
may  be  ordered.     (Bull.  8,  War  Dept.,  1914,  p.  8.) 

(b)  For  the  defense. — The  fact  that  a  member  is  a  witness  for  the 
defense  will  not  necessarily  disqualify  him  to  sit  as  a  member  of  the 
court,  and  the  fact  that  such  a  witness  sits  throughout  the  trial  as  a 
member  of  the  court  will  not  in  any  way  affect  the  validity  of  its 
proceedings. 

(c)  ^Y}len  called  hy  court, — Whether  a  member  called  as  a  witness 
by  the  court  is  to  be  considered  as  a  witness  for  the  prosecution  de- 
pends on  the  character  of  his  testimony,  which  should  be  carefully 
considered  before  a  conclusion  is  reached  that  he  is  not.  In  an}^  case 
of  doubt  he  should  be  excused  from  further  participation  in  the  trial 
as  a  member.     (Op.  J.  A.  G.,  Nov.  20,  1913.) 

{d)  When  accused  pleads  guilty. — ^When  a  member  is  a  witness  to 
any  charge  or  specification  to  which  the  accused  pleads  guilty  and 
he  is  not  called  as  a  witness  for  the  prosecution  to  any  other  charge 
or  specification,  he  is  not  disqualified  from  sitting  as  a  member.  (Op. 
J.  A.  a,  Nov.  19, 1914,  Bull.  52,  War  Dept.,  1914,  p.  3.) 

Section  II. 

OATHS. 

132.  Oath  of  members. —  {a)  The  challenges  having  been  disposed  of, 
the  judge  advocate  of  a  general  or  special  court-martial  shall  ad- 
minister to  the  members  of  the  court,  before  they  proceed  upon  any 
trial,  the  following  oath  or  affirmation  (A.  W.  19)  : 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will  well  and  truly  try  and 
determine,  according  to  the  evidence,  the  matter  now  before  you,  between 
the  United  States  of  America  and  the  person  to  be  tried,  and  that  you  will 
duly  administer  justice,  without  partiality,  favor,  or  affection,  according  to 
the  provisions  of  the  rules  and  articles  for  the  government  of  the  Armies 
of  the  United  States,  and  if  any  doubt  should  arise,  not  explained  by  said 
articles,  then  according  to  your  conscience,  the  best  of  your  understanding, 
and  the  custom  of  war  in  like  cases;  and  you  do  further  swear  (or  affirm) 
that  you  will  not  divulge  the  findings  or  sentence  of  the  court  until  they 
shall  be  published  by  the  proper  authority,  except  to  the  judge  advocate  and 
assistant  judge  advocate;  neither  will  you  disclose  or  discover  the  vote  or 
opinion  of  any  particular  member  of  the  court-martial,  unless  required  to 
give  evidence  thereof  as  a  witness  by  a  court  of  justice  in  due  course  of 
law.     So  help  you  God. 

{h)  In  case  of  affirmation  the  closing  sentence  of  adjuration  will 
be  omitted. 

(<?)  When  more  than  one  case  is  tried  by  the  same  court,  the  oath 
must  be  administered  anew  for  each  case. 


62  MANUAL   FOR   COURTS- MARTIAL. 

(d)  The  oaths  or  affirmations  prescribed  in  A.  W.  19  for  the 
members,  the  judge  advocate,  a  witness,  and  others  will  always  be 
administered,  but  in  addition  there  may  be  such  additional  ceremony 
or  acts  as  will  make  the  oath  or  affirmation  binding  on  the  conscience 
of  the  person  taking  it. 

(e)  For  decorum  to  be  observed  during  the  administration  of 
oaths,  see  Chapter  VII,  Section  I. 

133.  Oath  of  judge  advocate. — When  the  oath  or  affirmation  has  been 
administered  to  the  members  of  a  general  or  special  court-martial, 
the  president  of  the  court  shall  administer  to  the  judge  advocate 
and  to  each  assistant  judge  advocate,  if  any,  an  oath  or  affirmation 
in  the  following  form  (A.  W.  19)  : 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will  not  divulge  the  findings  or 
sentence  of  the  court  to  any  hut  the  proper  authority  until  they  shall  be 
duly  disclosed  by  the  same.    So  help  you  God. 

134.  Oath  of  witness. —  (a)  All  persons  who  give  evidence  before  a 
court-martial  shall  be  examined  on  oath  or  affirmation  in  the  follow- 
ing form  (A.  W.  19),  administered  by  the  judge  advocate: 

You  swear  (or  affirm)  that  the  evidence  you  shall  give  in  the  case  now  in 
hearing  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth.  So 
help  you  God. 

(b)  If  either  the  judge  advocate  or  assistant  judge  advocate  is  to 
testify,  the  oath  or  affirmation  will  be  administered  by  the  other  or 
by  the  president. 

135.  Oath  of  reporter. — (a)  Every  reporter  of  the  proceedings  of  a 
court-martial  shall,  before  entering  upon  his  duties,  make  oath  or 
affirmation  in  the  following  form  (A.  W.  19),  administered  by  the 
judge  advocate : 

You  swear  (or  affirm)  that  you  will  faithfully  perform  the  duties  of  reporter 
to  this  court.    So  help  you  God. 

(h)  For  authority  for  hiring  reporters,  and  compensation,  see 
Chapter  VII,  Section  V. 

136.  Oath  of  interpreter. — Every  interpreter  in  the  trial  of  any  case 
before  a  court-martial  shall,  before  entering  upon  his  duties,  make 
oath  or  affirmation  in  the  following  form  (A.  W.  19),  administered 
by  the  judge  advocate : 

You  swear  (or  affirm)  that  you  will  truly  interpret  in  the  case  now  in 
hearing.    So  help  you  God. 

137.  Oath  to  test  competency. — When  a  member  of  a  general  or  special 
court-martial  is  challenged  and  it  is  desired  to  question  him  regard- 
ing his  eligibility  to  sit  as  a  member  in  the  trial  of  a  case,  the  judge 
advocate  will  administer  to  him  the  following  oath : 

You  swear  that  you  will  true  answers  make  to  questions  touching  your 
competency  as  a  member  of  the  court  in  this  case.    So  help  you  God. 


COURTS-MABTIAL ORGANIZATION.  63 

138.  Oaths  for  administrative  purposes. — (a)  Any  officer  or  clerk  of 
any  of  the  departments  lawfully  detailed  to  investigate  frauds  on, 
or  attempts  to  defraud,  the  Government,  or  any  irregularity  or  mis- 
conduct of  any  officer  or  agent  of  the  United  States,  and  any  officer 
of  the  Army,  Navy,  Marine  Corps,  or  Kevenue-Cutter  Service  de- 
tailed to  conduct  an  investigation,  and  the  recorder,  and  if  there  be 
none  the  presiding  officer,  of  any  military,  naval,  or  Revenue- Cutter 
Service  board  appointed  for  such  purpose,  shall  have  authority  to 
administer  an  oath  to  any  witness  attending  to  testify  or  depose  in 
the  course  of  such  investigation.  (R.  S.  183,  as  amended  by  the 
act  of  Feb.  13,  1911,  36  Stat.,  898.) 

(b)  Any  judge  advocate  or  acting  judge  advocate,  the  president 
of  a  general  or  special  court-martial,  any  sunmiary  court-martial,  the 
judge  advocate  or  any  assistant  judge  advocate  of  a  general  or  spe- 
cial court-martial,  the  president  or  the  recorder  of  a  court  of  inquiry 
or  of  a  military  board,  any  officer  designated  to  take  a  deposition,  any 
officer  detailed  to  conduct  an  investigation,  and  the  adjutant  of  any 
command  shall  have  power  to  administer  oaths  for  the  purposes  of 
the  administration  of  military  justice  and  for  other  purposes  of  mili- 
tary administration;  and  in  foreign  places  where  the  Army  may  be 
serving  shall  have  the  general  powers  of  a  notary  public  or  of  a 
consul  of  the  United  States  in  the  administration  of  oaths,  the  execu- 
tion and  acknowledgment  of  legal  instruments,  the  attestation  of 
documents,  and  all  other  forms  of  notarial  acts  to  be  executed  by 
persons  subject  to  military  law.     (A.  W.  114.) 

Section  III. 

CONTINUANCES. 

139.  Authority  for. — A  court-martial  may,  for  reasonable  cause,  grant 
a  continuance  to  either  party  for  such  time  and  as  often  as  may 
appear  to  be  just.  (A.  W.  20.)  If  before  the  first  meeting  of  the 
court  a  continuance  is  deemed  necessary  by  either  party,  application 
therefor  should  be  made  to  the  appointing  authority,  but  if  made 
after  assembling  the  application  will  be  made  to  the  court.  When 
application  is  made  to  the  court  for  an  extended  delay  which  appears 
to  be  well  founded,  it  may  be  referred  to  the  appointing  authority 
in  order  that  he  may  determine  whether  the  court  should  grant  it 
or  whether  he  should  dissolve  the  court. 

140.  Reason  for  application  to  be  stated. — ^The  party  desiring  a  con- 
tinuance must  state  the  reasons  upon  which  his  application  is  based. 
When  it  is  desired  because  of  the  absence  of  a  witness  he  should  dis- 
tinctly show  that  the  witness  is  material,  that  he  has  used  due  dili- 
gence to  procure  the  testimony  or  attendance  of  the  witness,  and  that 
he  has  reasonable  ground  to  believe  that  he  will  be  able  to  procure 


64  MANUAL  FOR  COURTS- MARTIAL. 

such  testimony  or  attendance  within  a  reasonable  time,  which  time 
shall  be  stated. 

141.  Number  of  continuances. — The  number  of  continuances  wliich 
may  be  granted  is  not  limited,  but  where  extended  delays  will  ensue 
the  court  will  be  justified  in  exacting  proof  of  due  diligence  on  the 
part  of  the  party  requesting  the  same,  and  may  even  require  the  rea- 
sons to  be  stated  under  oath  if  it  has  reason  to  suspect  that  the  in- 
tention is  merely  to  delay  the  proceedings. 

Section  IV. 

COMPLETION  OF  ORGANIZATION. 

142.  When  accomplished. — The  court  having  met,  the  accused  and  his 
counsel  having  been  introduced,  the  reporter  sworn,  the  convening 
order  read,  the  right  of  challenge  accorded,  and  the  court  and  judge 
advocate  sworn,  the  organization  of  the  court  is  complete  for  the 
trial  of  the  case. 


CHAPTEE  IX. 
COURTS-MARTIAL— PROCEDURE  DURING  TRIAL. 


Page. 

Section  I :  Arraignment 65 

143.  When  made 65 

144.  Procedure 66 

Section  II :  Pleas 66 

145.  Kinds  of  pleas 66 

(a)  To  the  jurisdiction;  (6)  in  abatement;  (c)  in  bar  of  trial;  (d)  to 

the  general  issue 66 

146.  Plea  to  the  jurisdiction 66 

Grounds  for,  enumerated,  (a)  to  (d) 66 

147.  Plea  in  abatement 67 

148.  Plea  in  bar  of  trial 67 

149.  Statute  of  limitations 67 

1.  Definition 67 

2.  Limitations  as  to  time,  (a)  to  (cZ) 67 

3.  Limitation  as  to  number  of  trials,  (a)  to  (A) 68 

150.  Pardon 70 

151.  Constructive  condonation 70 

152.  Inadmissible  special  pleas 70 

(a)  Former  punishment 70 

(6)  Illegal  enlistment -. .  70 

(c)  Release  from  arrest 70 

(d)  Other  forms  of  inadmissible  pleas 71 

153.  Action  upon  special  pleas 71 

Procedure,  (a)  to  (J) 71 

154.  Pleas  to  the  general  issue 72 

Discussed,  (a)  to  {g) 72 

Section  III:  Refusal  to  plead 73 

155.  Action- 73 

Section  IV:  Motions 74 

156.  Motion  to  sever 74 

157.  Motion  to  elect 74 

158.  Nolle  prosequi , 74 


Section  I. 

ARRAIGNMENT. 

143.  When  made. — On  the  swearing  in  of  the  members  and  the  judge 
advocate,  the  organization  of  the  court  is  complete  for  the  trial  of 
the  charges  in  the  case  then  before  the  court.  In  each  case  tried  by 
the  court  the  appointing  order  must  be  read  anew,  a  new  opportunity 

91487^—17 6  ^^ 


66  MANUAL  FOB   COUBTS-MAETIAL. 

to  challenge  must  be  given,  and  the  members,  judge  advocate,  re- 
porter, and  interpreter  must  be  sworn  anew.  In  each  case  the  pro- 
ceedings must  be  complete  without  reference  to  any  other  case. 

144.  Procedure. — The  court  being  organized,  and  both  parties  ready  to 
proceed,  the  judge  advocate  will  read  the  charges  and  specifications, 
separately  and  in  order,  to  the  accused  and  ask  him  how  he  pleads 
to  each.  The  order  pursued,  in  case  of  several  charges  or  specifica- 
tions, will  be  to  arraign  on  the  first,  second,  etc.,  specifications  to  the 
first  charge,  then  on  the  first  charge,  and  so  on  with  the  rest.  The 
reading  of  the  charges  and  specifications  and  the  pleas  of  the  accused 
in  answer  thereto  constitute  the  arraignment  of  the  accused.  In 
reading  the  charges  the  judge  advocate  will  also  read  the  name  and 
rank  of  the  officer  preferring  them. 

[For  decorum  to  be  observed  during  the  arraignment  see  par.  86.] 

Section  II. 
PLEAS. 

145.  Kinds  of  pleas. — ^In  court-martial  procedure  the  usual  pleas  are 
the  following:  (a)  Pleas  to  the  jurisdiction;  (h)  pleas  in  abate- 
ment; (c)  pleas  in  bar  of  trial;  and  (d)  pleas  to  the  general  issue. 
The  first  three  mentioned  are  also  known  as  special  pleas.  These 
pleas  should  be  made  in  the  order  named.  (Dudley,  p.  93 ;  Bouvier's 
Law  Dictionary,  Rawle,  3d  Rev.,  p.  2603.) 

146.  Plea  to  the  jurisdiction. — A  plea  to  the  jurisdiction  denies  the 
right  of  the  court  to  try  the  case.  The  following  are  grounds  for  a 
plea  to  the  jurisdiction  of  a  court: 

(a)  That  it  was  appointed  by  an  officer  who  did  not  have  the  legal 
authority  to  do  so  (see  Chap.  Ill,  Courts-martial — ^By  whom  ap- 
pointed) ; 

(h)  That  it  is  composed  wholly  or  in  part  of  members  not  author- 
ized by  law  to  sit  upon  such  court-martial  (see  Chap.  II,  Courts- 
martial — Composition) ; 

(c)  That  the  accused  is  not  subject  to  its  jurisdiction  (see  Chap. 
I,  Persons  subject  to  military  law) ;  or 

(d)  That  it  has  not  legal  power^to  try  the  offense  charged  (see 
Chap.  XVII,  Punitive  articles). 

A  plea  to  the  jurisdiction,  if  well  grounded  and  sustained  by  the 
court,  bars  further  prosecution  before  the  court.  If  well  grounded 
and  not  sustained  by  the  court,  the  proceedings  may  be  disapproved 
by  the  appointing  authority,  or,  even  though  approved,  may  be 
reviewed  on  writ  of  habeas  corpus  by  a  United  States  court,  which 
will  cause  the  proceedings  to  be  set  aside  as  illegal  and  void.  Waiver 
of  objection  will  never  avail  to  confer  jurisdiction  upon  a  court  not 


COUETS-MARTIAL PEOCEDUBE   DURING   TRIAL.  67 

legally  possessing  it,  even  though  the  accused  fails  to  submit  a  plea 
to  the  jurisdiction  at  the  proper  time. 

147.  Plea  in  abatement. — A  plea  in  abatement  is  based  upon  some 
defect  in  the  charge  or  specification  and  is  one  that  operates  merely 
to  delay  the  trial,  such  as  an  error  in  the  name,  rank,  or  organization 
of  the  accused  or  in  the  allegation  as  to  time  and  place  in  the  specifi- 
cation. An  accused  who  submits  a  plea  in  abatement  must  show 
how  the  error  may  be  amended.  When  a  plea  in  abatment  is 
sustained,  the  judge  advocate  will  correct  the  charge  and  specifica- 
tion objected  to  so  as  to  meet  the  objection,  and  the  trial  will  proceed 
on  the  corrected  charges.  To  enable  him  to  make  the  correction  a 
continuance  may  be  granted.  Matters  which  might  have  been  ob- 
jected to  by  a  plea  in  abatement  will  be  considered  as  waived  by 
pleading  to  the  general  issue. 

148.  Plea  in  bar  of  trial. — A  plea  in  bar  of  trial,  if  sustained,  is  a  sub- 
stantial and  conclusive  answer  to  the  charge  or  specification  to  which 
it  is  addressed.  Such  a  plea  may  be  made  on  the  grounds  set  forth  in 
pars.  149, 150,  and  151. 

149.  The  statute  of  limitations. — (1)  Definition. — Statutes  of  limita- 
tion in  criminal  law  are  statutes  of  which  the  accused  may  take 
advantage  and  deprive  the  Government  of  the  power  to  try  and 
punish  him  after  the  lapse  of  a  specific  period  since  the  offense  was 
committed.  They  are  enacted  to  secure  the  prompt  punishment  of 
criminal  offenses  and  with  a  view  to  obtain  the  attendance  of  the 
witnesses  at  the  trial  while  the  recollection  of  the  event  is  still  fresh 
in  their  minds.  In  court-martial  practice  prosecutions  are  limited 
both  as  to  time  and  as  to  number.     (A.  W.  39,  40.) 

(2)  Limitations  as  to  time. — {a)  In  the  following  cases  there  is  no 
limitation  as  to  time  upon  trial  by  court-martial  (A.  W.  39)  viz; 

(1)  Desertion  committed  in  time  of  war; 

(2)  Mutiny;  or 

(3)  Murder. 

{h)  The  period  of  limitation  upon  trial  and  punishment  by  court- 
martial  shall  be  three  (3)  years  in  the  following  cases  (A.  W.  39) 
viz. : 

(1)  Desertion  in  time  of  peace; 

(2)  Any  crime  or  offense  punishable  under  A.  W.  93 ;  or 

(3)  Any  crime  or  offense  punishable  under  A.  W.  94. 

{c)  No  person  subject  to  military  law  shall  be  liable  to  be  tried 
or  punished  by  a  court-martial  for  any  crime  or  offense  not  enumer- 
ated in  paragraph  {a)  or  paragraph  (Z>) ,  supra^  committed  more  than 
two  {2)  years  before  the  arraignment  of  such  person  (A.  W.  39). 

{d)  Computation  of  the  period  of  Ivmitation. — The  point  at  and 
from  which  the  period  of  limitation  is  to  begin  to  run  is  the  date  of 


68  MANUAL   FOR   COUETS- MARTIAL. 

the  commission  of  the  offense.  The  point  at  which  the  period  of  limi- 
tation is  to  terminate  and  from  which  said  period  is  to  be  reckoned 
back  is  the  date  of  arraignment  of  the  accused.  There  must  be  ex- 
cluded in  computing  this  period — 

(1)  The  period  of  any  absence  of  the  accused  from  the  jurisdiction 
of  the  United  States ;  and 

(2)  Any  period  during  which  by  reason  of  some  manifest  impedi- 
ment the  accused  shall  not  have  been  amenable  to  military  justice. 

[Notes. — "Manifest  impediment"  means  only  such  impediments  as  operate  to 
prevent  the  court-martial  from  exercising  its  jurisdiction,  and  includes  such  con- 
ditions as  being  held  as  a  prisoner  of  war  in  the  hands  of  the  enemy,  or  being 
imprisoned  under  the  sentence  of  a  civil  court  upon  conviction  of  crime  (In  re 
Davison,  4  Fed.  Rep.,  510)  ;  but  any  concealment  of  the  evidence  of  their  guilt 
or  other  like  fraud  on  their  part  while  they  remain  within  the  jurisdiction  of  the 
United  States,  by  which  the  prosecution  is  delayed  until  the  time  the  bar  has 
run,  did  not  deprive  them  of  the  benefit  of  the  statute.     (14  Op.  Atty.  Gen.,  268.) 

The  thirty-ninth  article  of  war  did  not  have  the  effect  to  authorize  trial  or 
punishment  for  any  crime  or  offense  barred  by  the  provisions  of  law  existing  at 
the  date  of  its  enactment,  August  29,  1916.] 

(3)  Limitation  as  to  numher  of  trials. —  (a)  No  person  shall  be 
tried  a  second  time  for  the  same  offense.     (A.  W.  40.) 

(b)  Where  a  person  subject  to  military  law  has  been  once  duly 
convicted  or  acquitted  by  a  court-martial  he  has  been  "  tried  "  in  the 
sense  of  the  article,  and  can  not  be  tried  again,  against  his  will,  for 
the  same  offense,  or  for  any  included  offense  and  it  is  immaterial 
Avhether  the  conviction  or  acquittal  has  been  approved  or  disap- 
proved. 

((?)  A  person  subject  to  military  law  has  not  been  "  tried  "  in  the 
sense  of  A.  W.  40  in  any  of  the  following  cases : 

Where  the  party,  after  being  arraigned  or  tried  before  a  court 
which  was  illegally  constituted  or  composed,  or  was  without  jurisdic- 
tion, was  again  brought  to  trial  before  a,  con\petent  tribunal;  where 
the  accused,  having  been  arraigned  upon  and  having  pleaded  to  cer- 
tain charges,  was  rearraigned  upon  a  new  set  of  charges  substituted 
for  the  others  which  were  withdrawn;  where  one  of  the  several  dis- 
tinct charges  upon  which  the  accused  had  been  arraigned  was  with- 
drawn pending  the  trial,  and  the  accused,  after  a  trial  and  finding  by 
the  court  upon  the  other  charges,  was  brought  to  trial  anew  upon 
the  charge  thus  withdrawn;  where,  after  proceedings  commenced, 
but  discontinued  without  a  finding,  the  accused  was  brought  to  trial 
anew  upon  the  same  charge;  where,  after  having  been  acquitted  or 
convicted  upon  a  certain  charge  which  did  not  in  fact  state  the  real 
offense  committed,  the  accused  was  brought  to  trial  for  the  same  act, 
but  upon  a  charge  setting  forth  the  true  offense;  where  the  court 
was  not  sworn;  where  the  first  court  was  dissolved  because  reduced 
below  five  members  by  the  casualties  of  the  service  pending  the  trial ; 
where,  for  any  cause,  without  fault  of  the  prosecution,  there  was  a 


COUKTS-MAKTIAL PKOCEDURE   DUKING   TRIAL.  69 

"mistrial,"  or  the  trial  first  entered  upon  was  terminated,  or  the 
court  dissolved,  at  any  stage  of  the  proceedings  before  a  final  ac- 
quittal or  conviction.     (Digest,  p.  167,  C,  II,  B.) 

{d)  The  same  acts  constituting  a  crime  against  the  United  States 
can  not,  after  the  acquittal  or  conviction  of  the  accused  in  a  court 
of  competent  jurisdiction,  be  made  the  basis  of  a  second  trial  of  the 
accused  for  that  crime  in  the  same  or  in  another  court,  civil  or  mili- 
tary, of  the  same  government. 

Although  the  same  act  when  committed  in  a  State  might  constitute 
two  distinct  offenses,  one  against  the  United  States  and  the  other 
against  the  State,  for  both  of  which  the  accused  might  be  tried,  that 
rule  does  not  apply  to  acts  committed  in  the  Philippine  Islands.  The 
government  of  a  State  does  not  derive  its  powers  from  the  United 
States,  while  that  of  the  Philippine  Islands  does  owe  its  existence 
wholly  to  the  United  States. 

A  soldier  in  the  Army,  having  been  acquitted  of  the  crime  of 
homicide,  alleged  to  have  been  committed  by  him  in  the  Philippine 
Islands,  by  a  military  court-martial  of  competent  jurisdiction  pro- 
ceeding under  authority  of  the  United  States,  can  not  be  subse- 
quently tried  for  the  same  offense  in  a  civil  court  exercising  authority 
in  that  Territory.    (Grafton  v.  U.  S.,  206  U.  S.,  333.) 

A  similar  rule  applies  in  Alaska,  Hawaii,  Porto  Rico,  The  Panama 
Canal  Zone,  or  any  other  locality  where  the  civil  courts  derive  their 
authority  from  the  United  States. 

{e)  There  can  not  be  a  second  trial  where  the  offense  is  really  the 
same  though  it  may  be  charged  under  a  different  description  and 
under  a  different  article  of  war.  Thus,  where  the  Government  elects 
to  try  a  soldier  under  A.  W.  61  for  absence  without  leave,  and  the 
testimony  introduced  develops  the  fact  that  the  offense  was  desertion, 
the  accused,  after  an  acquittal  or  conviction,  can  not  legally  be 
brought  a  second  time  to  trial  for  the  same  absence  charged  as  de- 
sertion.    (Digest,  p.  169,  C,  II,  D.) 

(/)  It  is  not  misrepresentation  or  concealment  by  an  applicant 
for  enlistment,  but  the  procuring  of  his  enlistment  by  means  of 
misrepresentation  or  concealment,  together  with  the  receipt  of  pay 
or  allowances,  which  constitutes  the  military  offense  of  fraudulent 
enlistment  under  A.  W.  54.  Therefore,  where  a  soldier  was  tried 
for  and  convicted  of  fraudulent  enlistment  in  procuring  his  enlist- 
ment by  means  of  a  misrepresentation  or  concealment,  to  try  him 
again  for  the  same  enlistment  on  account  of  another  misrepresenta- 
tion or  concealment  subsequently  discovered  would  be  a  second  trial 
for  the  same  offense.     (Digest,  p.  169,  C,  II,  E,  1.) 

{g)  The  thirty-ninth  article  of  war  does  not  deprive  a  court- 
martial  of  jurisdiction  of  an  offense  after  the  periods  prescribed. 
The  court  still  has  jurisdiction.    The  article  gives  the  accused  a  right 


70  MANUAL  FOR   COURTS-MARTIAL. 

of  exemption  from  trial  if  the  accused  claims  the  exemption  and 
proves  it.  In  other  words,  the  exemption  from  trial  is  a  defense 
that  the  accused  must  assert  in  order  to  take  advantage  of  it.  The 
defense  may  be  made  by  entering  a  plea  in  bar,  or  it  may  be  made 
after  a  plea  of  not  guilty  by  introducing  evidence  showing  the  facts 
that  entitle  him  to  the  exemption. 

(h)  In  each  case  tried  by  general  court-martial  in  which,  upon  the 
face  of  the  record,  it  appears  that  the  accused  might  successfully 
plead  the  statute  of  limitations  but  in  which  he  has  not  interposed 
such  plea,  it  shall  be  made  to  appear  of  record  that  the  president  of 
the  court  advised  the  accused  of  his  legal  rights  in  the  premises. 

150.  Pardon. — A  pardon  is  an  act  of  the  President  which  exempts 
the  individual  on  whom  it  is  bestowed  from  the  punishment  the  law 
inflicts  for  a  crime  he  has  committed.  (See  Words  and  Phrases, 
vol.  6,  p.  5168,  and  authorities  there  cited.) 

151.  Constructive  condonation. — Where  a  deserter  has  been  restored  to 
duty  without  trial  by  authority  competent  to  order  his  trial,  this 
action  is  regarded  as  a  constructive  condonation  of  the  offense  and 
may  be  pleaded  in  bar  of  trial  subsequently  ordered.  (Digest,  p. 
839,  XV,  D,4.) 

152.  Inadmissible  special  pleas — (a)  Former  punishment. — The  plea  of 
former  punishment,  i.  e.,  that  he  has  already  been  adequately  pun- 
ished for  his  offense  by  his  commanding  officer,  is  not  recognized  by 
our  military  law,  and,  when  made  in  our  military  trials,  has  been 
properly  overruled;  but  where  an  accused  has,  prior  to  trial,  been 
subjected,  on  account  of  his  offense,  to  any  physical  punishment,  or  to 
reduction  to  the  ranks,  or  to  protracted  arrest,  or  to  reprimand,  or 
other  unusual  or  unauthorized  discipline,  he  may  properly  show  the 
fact  in  evidence  on  the  general  issue  in  mitigation  of  such  sentence  as 
the  court,  in  the  event  of  his  conviction,  may  impose.  Except  in  this 
form,  he  can  not  avail  himself  of  such  circumstances  upon  his  trial. 
(Winthrop,  p.  411 ;  25  Op.  Atty.  Gen.,  623 ;  28  idem.,  622.) 

(b)  Illegal  enlistment. — The  accused,  upon  arraignment,  has  some- 
times pleaded  that  on  account  of  some  illegality  in  his  enlistment,  as 
that  he  was  under  age,  or  that  he  was  enlisted  for  a  shorter  period 
than  the  law  required,  etc.,  he  was  not  amenable  to  trial.  But  no  such 
form  of  special  plea  is  recognized  in  our  law.  If  the  accused,  by 
reason  of  his  invalid  enlistment,  is  not  duly  or  legally  in  the  Army, 
he  should,  regularly,  offer  the  facts  in  evidence  under  a  plea  to  the 
jurisdiction,  or  bring  them  out  under  the  general  issue.  (Winthrop, 
p.  411.) 

(c)  Eelease  from  arrest. — Release  from  arrest  upon  the  charges  and 
restoration  to  duty  before  trial — already  noticed  as  not  a  ground  for 
a  plea  of  pardon  or  condonation  (except  in  case  of  a  deserter  restored 


COURTS-MAKTIAL PROCEDURE  DURING  TRIAL.  71 

to  duty  without  trial) — is,  similarly,  no  ground  for  a  special  plea  in 
bar  of  trial.     (Idem,  p.  412.) 

(d)  Other  forms  of  inadmissible  pleas. — Such  objections  (which  have 
been  taken  in  some  cases)  as  that  the  accused,  at  the  time  of  the 
arraignment,  is  undergoing  a  sentence  of  general  court-martial,  or 
that,  owing  to  the  long  delay  in  bringing  him  to  trial,  he  is  "  unable 
to  disprove  the  charge  or  defend  himself  " ;  or  that  his  accuser  is  ac- 
tuated by  malice  or  is  a  person  of  bad  character — are,  it  need  hardly 
be  said,  not  proper  subjects  for  special  pleas,  however  much  they  may 
constitute  ground  for  continuance,  or  affect  the  question  of  the  meas- 
ure of  punishment.  So,  as  to  all  such  objections  as  are  properly  mat- 
ters of  defense  under  the  general  issue — for  example,  that  the  accused 
committed  the  offense  charged  when  insane,  or  intoxicated,  or  in 
obedience  to  a  military  order,  or  under  a  mistake  of  fact  or  law, 
etc. — ^these  are  not  within  the  scope  or  purpose  of  special  pleas  in  bar, 
nor  can  they  properly  be  raised  in  an  interlocutory  form,  or  otherwise 
than  upon  the  trial  and  by  the  testimony,  being,  as  they  are,  of  the 
very  substance  of  the  defense.    (Idem,  p.  412.) 

163.  Action  upon  special  pleas. — (a)  Each  special  plea  should  be 
stated  briefly  and  clearly.  It  must  also  be  supported  by  evidence 
or  legal  argument  to  show  that  it  is  well  taken.  The  burden  of  sup- 
porting a  special  plea  by  a  preponderance  .of  proof  rests  on  the 
accused.  Both  sides  should  be  heard  and  the  proceedings  and  argu- 
ments under  the  plea  in  trial  by  general  or  special  court-martial 
recorded.  The  accused  may  make  several  special  pleas  to  any  charge 
or  specification, 

(h)  When  a  special  plea  to  the  jurisdiction  or  in  bar  of  trial 
as  to  all  the  charges  and  specifications  has  been  sustained  by  a  court, 
the  record  of  the  proceedings  as  far  as  had  will  be  forwarded  to  the 
reviewing  authority  with  a  statement  of  reasons  which,  in  the 
opinion  of  the  court,  sustain  its  action.  If  the  reviewing  authority 
is  in  disagreement  with  the  court  in  respect  of  the  validity  of  the 
plea,  the  proceedings  will  be  returned  by  him  to  the  court,  with 
reasons  for  such  disagreement  »and  with  instructions  to  the  court 
to  reconvene  and  reconsider  its  action.  To  the  extent  that  such 
pleas  present  issues  of  law,  the  court  properly  defers  to  the  views 
of  the  reviewing  authority.  The  order  returning  the  procedings  for 
reconsideration  should  direct  the  court,  upon  vacating  its  prior 
action,  to  proceed  with  the  trial  of  the  case.  If  the  reviewing  author- 
ity approves  the  action  of  the  court  in  sustaining  such  pleas  his 
action  will  be  indorsed  on  the  proceedings  and  published  in  the  final 
review  of  the  case. 

(c)  If  the  charge  and  specification  to  which  a  special  plea  has 
been  sustained  are  not  capable  of  amendment  and  there  are  other 
charges  and  specifications  in  the  case,  the  trial  may  proceed  on  the 
other  charges  and  specifications.     (G.  O.  28,  W.  D.,  1905.) 


72  MANUAL  FOR   COURTS- MARTIAL. 

{d)  When  all  the  special  pleas  to  a  given  charge  or  specification 
are  overruled,  the  accused  must  plead  to  the  general  issue  as  to  that 
charge  or  specification. 

154.  Pleas  to  the  general  issue. —  {a)  Usually  the  plea  of  the  accused 
is  "guilty"  or  "not  guilty"  to  each  charge  and  specification ;  or,  guilty 
to  a  specification  excepting  certain  words,  and  to  the  excepted  words 
not  guilty;  or,  as  when  charged  with  an  offense  which  includes  a 
lesser  one  of  a  kindred  nature,  guilty  to  the  specification  except  cer- 
tain words,  substituting  therefor  certain  others,  to  the  excepted  words 
"  not  guilty,"  to  the  substituted  words  "  guilty,"  and  to  the  charge  not 
guilty,  but  guilty  of  the  lesser  included  offense. 

{h)  A  court-martial  is  authorized,  in  any  case,  in  its  discretion, 
to  permit  an  accused  to  withdraw  a  plea  of  not  guilty,  and  substi- 
tute one  of  guilty,  and  vice  versa,  or  to  withdraw  either  of  these 
general  pleas  and  substitute  a  special  plea.  And  wherever  the  ac- 
cused applies  to  be  allowed  to  change  or  modify  his  plea,  the 
court  should,  in  general,  consent,  provided  the  application  is  made  in 
good  faith  and  not  for  the  purpose  of  delay. 

((?)  A  plea  of  guilty  does  not  necessarily  exclude  the  taking  of 
evidence,  on  behalf  of  either  the  accused  or  the  prosecution,  or  at  the 
request  of  the  court.  In  cases  where  the  punishment  is  discretionary 
a  full  knowledge  of  the  circumstances  attending  the  offense  is  es- 
sential to  the  court  in  measuring  the  punishment,  and  to  the  review- 
ing authority  in  acting  on  the  sentence.  In  cases  where  the  punish- 
ment is  maThdatory^  a  full  knowledge  of  the  attendant  circumstances 
is  necessary  to  the  reviewing  authority  to  enable  him  to  comprehend 
the  entire  case  and  correctly  judge  whether  the  sentence  should  be 
approved  or  disapproved  or  clemency  granted.  The  court  should 
therefore  take  evidence  after  a  plea  of  .guilty,  except  when  the 
specification  is  so  descriptive  as  to  disclose  all  the  circumstances  of 
mitigation  or  aggravation.  When  evidence  is  taken  after  a  plea  of 
"guilty",  the  witnesses  may  be  cross  examined,  evidence  may  be  pro* 
duced  to  rebut  their  testimony,  and  the  court  may  be  addressed  by 
the  prosecution  or  defense  on  the  merits  of  the  evidence  and  in  ex- 
tenuation of  the  offense  or  in  mitigation  of  punishment.  After  a 
plea  of  guilty  the  accused  will  always  be  given  an  opportunity  to 
offer  evidence  in  mitigation  of  the  offense  charged  if  he  desires  to 
do  so. 

{d)  In  each  case  tried  by  a  general  court-martial  in  which  the 
accused  enters  a  plea  of  guilty  in  whole  or  in  part  as  to  any  charge 
or  specification  the  president  of  the  court  shall  explain  to  him  as  to 
that  part : 

First.  The  various  elements  which  constitute  the  offense  charged, 
as  set  forth  in  Chapter  XVII,  defining  the  punitive  articles  of  war; 
and 


COUBTS-MARTIAL PROCEDUBE   DUBING   TBIAL.  73 

Second.  The  maximum  punishment  which  may  be  adjudged  by  the 
court  for  the  offense  to  which  he  has  pleaded  guilty. 

The  accused  will  then  be  asked  whether  he  fully  understands  that 
by  pleading  guilty  to  such  a  charge  or  specification  he  admits  having 
committed  all  the  elements  of  the  crime  or  offense  charged  and  that  he 
may  be  punished  as  stated.  If  he  replies  in  the  affirmative,  the  plea  of 
guilty  will  stand ;  otherwise  a  plea  of  not  guilty  will  be  entered.  The 
explanation  of  the  president  and  the  reply  of  the  accused  thereto 
shall  appear  in  the  record.  The  same  rule  will  apply  in  cases  tried 
by  special  court-martial  when  the  evidence  heard  is  made  of  record. 

{e)  When  the  accused  pleads  "  guilty,"  and,  without  any  evidence 
being  introduced,  makes  a  statement  inconsistent  with  his  pl^a,  the 
statement  and  plea  will  be  considered  together,  and  if  guilt  is  not 
conclusively  admitted  the  court  will  direct  the  entry  of  a  plea  of 
"  not  guilty  "  and  proceed  to  try  the  case  on  the  general  issue  thus 
made.  The  most  frequent  instances  of  inconsistency  are  in  cases 
involving  a  specific  intent,  as  in  desertion,  larceny,  etc.  In  such 
cases,  where  after  a  plea  of  guilty  the  accused  makes  a  statement, 
the  latter  should  be  carefully  scrutinized  by  the  court,  and  if  in 
the  case  of  desertion  in  any  part  there  is  a  statement  that  the  ac- 
cused had  no  intention  of  remaining  away,  that  he  expected  to  re- 
turn when  he  had  earned  some  money,  or  that  when  arrested  he  was 
on  his  way  back  to  his  organization,  etc. ;  or,  in  the  case  of  larceny, 
that  he  intended  to  return  the  property  alleged  to  have  been  stolen, 
etc.,  the  court  should  direct  the  entry  of  a  plea  of  "  not  guilty,"  but 
the  criminality  of  an  intent  once  formed  is  not  affected  by  a  subse- 
quent change  of  intent. 

(/)  A  plea  of  "  guilty  without  criminality  "  is  irregular  and  con- 
tradictory. (Winthrop,  p.  414.)  It  is  practically  equivalent  to  a 
plea  of  "  not  guilty  "  and  the  court  and  judge  advocate  should  pro- 
ceed as  if  that  plea  were  entered.  Unless  a  plea  of  guilty  is  unquali- 
fied the  prosecution  must  prove  all  allegations  that  are  not  specifi- 
cally admitted  by  the  accused. 

{g)  Insanity  at  the  time  of  the  commission  of  the  acts  charged 
is  a  defense  which  may  be  properly  made  under  a  plea  of  not  guilty. 
Insanity  at  the  time  of  arraignment,  or  at  a  later  stage  of  the  trial, 
is  a  proper  ground  for  the  arrest  of  further  proceedings  on  the 
charges.     (See  par.  219.) 

Section  III. 

REFUSAL  TO  PLEAD. 

155.  Action. — ^When  the  accused,  arraigned  before  a  court-martial, 
from  obstinacy  and  deliberate  design  stands  mute  or  answers  for- 
eign to  the  purpose,  the  court  may  proceed  to  trial  and  judgment  as 
if  he  had  pleaded  not  guilty.  (A.  W.  21.)  If  the  court  finds  that 
the  failure  to  plead  is  the  result  of  insanity,  it  will  proceed  as  indi- 
cated in  Section  II,  paragraph  154  (^),  supra. 


74  MANUAL    FOR    COUBTS-MAETIAL,. 

Section  IV. 
MOTIONS. 

156.  Motion  to  sever. — A  motion  to  seA^er  is  a  motion  by  one  of  two 
or  more  joint  accused  to  be  tried  separately  from  the  other  or  others. 
It  will  regularly  be  made  at  the  arraignment.  Except  where  the 
essence  of  the  charge  is  combination  between  the  parties  (as  in 
mutiny),  the  motion  may  properly  be  granted  for  good  cause  shown. 
The  more  common  grounds  of  motions  for  severance  are  that  the 
mover  desires  to  avail  himself  on  his  trial  of  the  testimony  of  one 
or  more  of  his  coaccused,  or  of  the  testimony  of  the  wife  of  one,  or 
that  the  defenses  of  the  other  accused  are  antagonistic  to  his  own,  or 
that  the  evidence  as  to  them  will  in  some  manner  prejudice  his 
defense.  This  motion  has  rarely  been  presented  to  the  court  in  our 
military  practice.  Where  the  prosecution  desires  to  use  one  of  two 
or  more  joint  accused  as  a  witness  against  another  or  others,  the 
practice  is  not  to  move  to  sever,  but,  by  order  of  the  convening 
authority,  to  withdraw  charges  as  to  such  one.  (See  Winthrop,  p. 
379,  and  authorities  there  quoted.) 

157.  Motion  to  elect. — The  prosecution  is  at  liberty  to  charge  an  act 
under  two  or  more  forms,  where  it  is  doubtful  under  which  it  will 
more  properly  be  brought  by  the  testimony.  In  the  military  practice 
the  accused  is  not  entitled  to  call  upon  the  prosecution  to  "elect" 
under  which  charge  it  will  proceed  in  such,  or  indeed  in  any,  case. 
(Digest,  p.  504,  V,  F.) 

158.  Nolle  prosequi. — A  nolle  prosequi  is  a  declaration  of  record  on 
the  part  of  the  prosecution  that  it  withdraws  a  charge  or  specifica- 
tion from  the  investigation  and  will  not  pursue  the  same  further 
at  the  present  trial.  This  authority  can  only  be  exercised  by  the 
superior  who,  as  the  representative  of  the  'United  States,  ordered  the 
court,  and  in  a  proper  case  he  may,  on  his  own  initiative  or  on  appli- 
cation duly  made  to  him,  instruct  the  judge  advocate  to  enter  a  nolle 
prosequi.  The  principal  grounds  for  this  proceeding  when  duly 
authorized  will  be — 

{a)  The  fact  that  the  charge  or  specification  is  discovered  to  be 
substantially  defective  and  insufficient  in  law,  or 

{h)  That  it  is  ascertained  that  the  allegations  can  not  be  proved,  or 

{c)  That  the  testimony  available  is  not  sufficient  to  sustain  them, 
or 

{d)  That  the  criminality  of  one  of  the  accused,  where  there  are 
several,  can  not  be  established,  or 

{e)  That  it  is  proposed  to  use  one  of  the  accused  as  a  witness. 

The  withdrawal  of  such  a  charge  or  specification  is  not  in  itself 
equivalent  to  an  acquittal  or  to  a  grant  of  pardon  and  can  not  be  so 
pleaded.     It  simply  removes  from  the  pending  case  a  particular 


COURTS-MARTIAIi — PROCEDURE  DURING  TRIAL.  75 

charge  or  specification  without  prejudice  to  its  being  subsequently 
renewed  in  its  original  or  a  revised  form.  In  court-martial  practice 
when  authorized  by  the  appointing  authority  a  nolle  prosequi  may 
be  entered  either  before  or  after  arraignment  and  plea.  If  after  ar- 
raignment it  is  found  that  a  charge  or  specification  can  not  be  sus- 
tained or  it  is  determined  for  other  reasons  that  the  same  shall  not 
'be  pursued,  while  it  would  be  legal  to  enter  a  nolle  prosequi  thereto, 
it  will  be  the  preferable  course,  as  well  as  most  just  to  the  accused, 
not  to  do  so,  but  to  allow  the  accused  to  be  formally  acquitted 
thereon  at  the  finding.    (See  Winthrop,  pp.  369-371.) 


CHAPTEK  X. 
COURTS-MARTIAL— WITNESSES  AND  DEPOSITIONS. 


Section  I,  Attendance  of  witnesses:  Pago. 

159.  Process  to  obtain  witnesses 78 

160.  Service  of  subpoena 78 

161.  Summoning  of  witnesses 78 

162.  Advance  notice  to  witnesses 79 

163.  Attendance  of  military  witnesses 79 

164.  Procedure  to  secure  attendance  of  civilian  witness 79 

165.  When  accused  must  be  confronted  with  witness 80 

166.  Procedure  to  obtain  books,  documents,  or  papers 80 

167.  Civilian  witness  in  confinement 80 

168.  Warrant  of  attachment 80 

169.  Habeas  corpus  proceedings  in  connection  with  attachments 81 

170.  Punishment  for  refusal  to  appear  or  testify 82 

171.  Same  in  Philippine  Islands 83 

172.  Tender  of  fees  preliminary  to  prosecution 83 

173.  Contempts 83 

(a)  Authority  to  punish 83 

(6)  Persons  who  may  be  punished  for  contempt 84 

(c)  Direct  and  constructive  contempts 84 

(d)  Procedure 84 

Section  II.  Depositions: 

174.  When  admissible 84 

175.  Before  whom  taken 85 

176.  Interrogatories,  how  submitted 35 

177.  Procedure  to  obtain  deposition 85 

178.  Tracing  delayed  depositions 87 

179.  Designation  of  deponent  by  official  title 87 

180.  Deponent's  answers  to  be  responsive 87 

181.  Fees  for  taking  depositions ■ 87 

182.  Taking  depositions  in  foreign  country 87 

Section  III.  Fees,  mileage,  and  expenses  of  witnesses: 

183.  Officers  and  soldiers,  active  or  retired 88 

184.  Civilians  in  Government  employ 88 

185.  Civilians  not  in  Government  employ 88 

186.  Payment  for  return  journey 89 

187.  Contents  of  vouchers 89 

188.  Witness  in  several  trials  on  same  day 89 

189.  Voucher  to  be  delivered  to  witness 89 

190.  Lost  voucher 89 

191.  Fees  for  service  of  subpoenas 90 

192.  Employment  of  experts 90 

193.  Expenses  of  courts-martial,  how  payable 90 

77 


78  MANUAL  FOB  COURTS- MARTIAL. 

Section  I. 
ATTENDANCE  OF  WITNESSES. 

159.  Process  to  obtain  witnesses. — Every  judge  advocate  of  a  general 
or  special  court-martial,  and  every  summary  court-martial  shall  have 
power  to  issue  the  like  process  to  compel  witnesses  to  appear  and 
testify  which  courts  of  the 'United  States,  having  criminal  jurisdic- 
tion, may  lawfully  issue;  but  such  process  shall  run  to  any  part  of 
the  United  States,  its  Territories,  and  possessions.  (A.  W.  22.)  The 
authority  to  issue  such  process  is  in  terms  vested  solely  in  the  judge 
advocate  of  a  general  or  special  court-martial  and  in  a  summary  court- 
martial,  and  it  is  by  them  alone  that  the  process  can  be  initiated.  The 
judge  advocate,  however,  will  sometimes  properly  consult  the  court 
as  to  the  desirability  of  resorting  to  an  attachment;  especially  where 
any  considerable  time  may  be  required  for  the  service  and  return  of 
the  same,  and  an  unusual  adjournment  may  thus  be  necessitated.  He 
will  also  properly  resort  to  it  whenever  the  court  in  its  desire  to 
secure  the  best  or  material  evidence  not  otherwise  procurable  calls 
upon  him  for  the  purpose.    ( Winthrop,  p.  298. )     {CM.  C.  M.^  No.  1.) 

[Note. — ^1.  For  power  to  issue  process  to  secure  the  attendance  and  testimony 
of  witnesses  before  courts-martial  in  tlie  National  Guard,  not  in  the  service  of 
the  United  States,  see  sec.  108,  act  of  June  3,  1916,  39  Stat.,  209,  Appendix  2. 
2.  Wherever  in  this  section  reference  is  made  to  issue  of  such  process  by  a  judge 
advocate,  a  summary  court-martial  will  be  understood  to  be  included.] 

160.  Service  of  subpoena. — A  subpoena  for  the  attendance  of  a  civilian 
witness  is  issued  in  duplicate.  It  may  be  legally  served  by  either  a 
person  in  the  military  service  or  a  civilian.  Usually,  service  is  made 
by  an  officer  or  noncommissioned  officer.  Service  is  made  by  personal 
delivery  of  one  of  the  copies  to  the  witness.  The  proof  of  service  is 
made  by  indorsing  on  the  remaining  copy  a  sworn  statement  that 
service  was  made.  (For  service  by  mail  and  acceptance  of  same,  see 
par.  164,  below.)  After  making  service  a  copy  of  the  subpoena  will  be 
promptly  returned  to  the  judge  advocate  of  the  court,  with  the  proof 
of  service.  If  the  witness  can  not  be  found,  the  judge  advocate  should 
be  promptly  so  informed.  A  judge  advocate  can  not  subpoena  a 
civilian  witness  to  appear  before  himself  for  preliminary  examina- 
tion. 

[Note. — For  form  of  subpoena  and  proof  of  service,  see  Appendix  13.] 

161.  Summoning  of  witnesses. — ^The  judge  advocate  will  summon  the 
necessary  witnesses  for  the  trial,  but  will  not  sunmion  witnesses  at 
the  expense  of  the  Government  without  the  order  of  the  court,  unless 
satisfied  that  their  testimony  is  material  and  necessary.  In  order  that 
the  accused  may  not  be  denied  a  full  opportunity  to  make  his  defense 
any  witness  requested  by  him  is  usually  summoned.  But  a  reason- 
able discretion  should  be  exercised  where  the  summoning  of  the  num- 


COURTS-MARTIAL WITNESSES  AND  DEPOSITIONS.  79 

ber  of  witnesses  requested  by  the  defense  would  result  in  an  unreason- 
able inconvenience  or  expense  to  the  Government.  In  such  instances 
the  judge  advocate  should  ascertain  whether  the  testimony  required  of 
the  witness  is  not  merely  cumulative,  or  as  to  an  unimportant  point 
that  one  witness  would  be  sufficient  to  render  conclusive,  or  as  to 
which  the  judge  advocate  would  be  willing  to  admit  the  facts  ex- 
pected from  the  witness's  testimony. 

162.  Advance  notice  to  witnesses. — The  judge  advocate  will  endeavor 
to  issue  subpoenas  to  civilian  witnesses  and  to  make  request  for  the 
attendance  of  military  witnesses  at  such  time  as  will  give  each 
witness  at  least  24  hours'  notice  before  starting  to  attend  the  meeting 
of  the  court. 

163.  Attendance  of  military  witnesses. — ^The  attendance  of  persons  in 
the  military  service  stationed  at  the  place  of  meeting  of  the  court, 
or  so  near  that  no  expense  of  transportation  will  be  involved,  will 
ordinarily  be  obtained  by  informal  notice  served  by  the  judge  advo- 
cate on  the  person  concerned  that  his  attendance  as  a  witness  is 
desired.  If  for  any  reason  formal  notice  is  required,  the  judge 
advocate  will  request  the  proper  commanding  officer  to  order  him  to 
attend;  but,  if  mileage  is  involved,  the  department  commander  or 
other  proper  superior  will  be  requested  to  issue  the  necessary  order. 
Fees  will  not  be  paid  to  military  witnesses  on  the  active  list,  and  they 
are  entitled  only  to  the  mileage  allowances  due  them  under  their 
travel  orders.  The  attendance  as  witnesses  of  persons  on  the  retired 
list  (not  assigned  to  active  duty)  should  be  obtained  in  the  same 
manner,  and  they  are  entitled  to  the  same  fees  and  mileage  as 
civilian  witnesses  not  in  the  Government  employ.  No  travel  order 
will  be  issued  in  such  cases. 

164.  Procedure  to  secure  attendance  of  civilian  witness. — Unless  he  has 
reason  to  believe  that  a  formal  service  of  subpoena  will  be  required, 
the  judge  advocate  will  endeavor  to  secure  the  attendance  of  a 
civilian  witness  by  correspondence  with  him,  sending  him  duplicate 
subpoena  properly  filled  out,  with  a  request  to  accept  service  on  one 
by  signing  the  printed  statement,  "  I  hereby  accept  service  of  the 
above  subpoena,"  and  to  return  same  to  the  judge  advocate,  for 
which  purpose  a  return  addressed  penalty  envelope  should  be 
inclosed.  Ordinarily  there  will  be  no  difficulty  in  securing  the  vol- 
untary attendance  of  a  civilian  witness  if  he  is  informed  that  his 
fees  and  mileage  will  not  be  reduced  by  reason  of  his  voluntary 
attendance,  and  that  a  voucher  for  his  fees  and  mileage  going  to  and 
returning  from  the  place  of  the  sitting  of  the  court-martial  will  be 
delivered  to  him  promptly  on  being  discharged  from  attendance  on 
the  court.  If  such  informal  methods  are  ineffective,  formal  dupli- 
cate subpoena  will  be  issued  by  the  judge  advocate  with  a  view  to 
service  on  the  witness.     If  the  witness  is  at  or  near  the  post  where 


80  MANUAL  FOR   COURTS- MABTIAL. 

the  court  is  sitting,  the  service  will  be  by  the  judge  advocate  or  by 
some  person  designated  by  him.  If  the  witness  is  not  at  or  near  the 
post  where  the  court  is  sitting,  but  is  at  or  near  another  military 
post,  command,  or  detachment,  the  judge  advocate  will  send  the 
duplicate  subpoena  direct  to  the  commanding  officer  of  such  post, 
command,  or  detachment,  requesting  service  of  the  same.  Upon 
receipt  of  the  request  the  officer  receiving  it  will  serve  the  subpoena 
or  cause  it  to  be  served.  The  service  will  be  made  without  delay, 
and  the  retained  copy  of  the  subpoena,  with  proof  of  service  indorsed 
on  it,  will  be  sent  at  once  direct  to  the  judge  advocate.  If  in  any 
instance  travel  is  necessary  to  serve  the  subpoena,  a  request  will 
promptly  be  made  by  the  commanding  officer  of  the  post,  command, 
or  detachment,  on  the  proper  authority  for  travel  orders.  If  the 
witness  does  not  reside  near  a  post,  command,  or  detachment,  the 
subpoena  will  be  sent  direct  to  the  department  or  other  proper 
commander  requesting  service  of  the  same. 

165.  When  accused  must  be  confronted  with  witness. — Depositions  can 
not  be  introduced  by  the  prosecution  in  capital  cases.  (See  A.  W.  25, 
Chap.  XI,  Evidence,  and  Chap.  lY,  Sec.  III.)  In  such  cases,  there- 
fore, as  well  as  in  others  in  which  the  judge  advocate  believes  that 
the  interests  of  justice  demand  that  the  accused  be  confronted  by  a 
witness  against  him,  or  believes  that  for  any  reason  a  witness  should 
testify  in  the  presence  of  the  court,  he  will  take  the  necessary  steps 
to  secure  the  attendance  of  such  witness  or  witnesses. 

166.  Procedure  to  obtain  books,  documents,  or  papers. — If  a  civilian  has 
in  his  possession  a  book,  document,  or  paper  desired  to  be  introduced 
in  evidence,  a  subpoena  duces  tecum  will  be  prepared  and  issued  by 
the  judge  advocate,  directing  the  person  to  appear  in  court  and  to 
bring  with  him  such  book,  document,  or  paper,  which  should  be  de- 
scribed in  sufficient  detail  to  enable  it  to  be  readily  identified. 

[Note. — For  form,  see  Appendix  13.] 

167.  Civilian  witness  in  confinement. — The  testimony  of  a  witness  who 
is  in  confinement  in  the  hands  of  the  civil  authorities  will  ordinarily 
be  obtained  by  means  of  a  deposition  (A.  W.  25),  but  if  for  any  rea- 
son it  is  necessary  that  such  a  witness  testify  in  court,  an  endeavor 
should  be  made  by  the  judge  advocate  to  make  arrangements  with 
the  civil  authorities  to  obtain  his  appearance. 

168.  Warrant  of  attachment. — In  view  of  the  provisions  of  A.  W.  23 
providing  for  the  punishment  on  information  before  a  district  court 
of  the  United  States  or  in  a  court  of  original  criminal  jurisdiction 
in  any  of  the  territorial  possessions  of  the  United  States  of  a  civilian 
who  willfully  neglects  or  refuses,  after  he  has  been  duly  subpoenaed, 


COUETS-MARTTAL WITNESSES  AND  DEPOSITIONS.  81 

to  appear  as  a  witness  before  any  military  court,  commission,  court 
of  inquiry,  or  board,  circumstances  requiring  the  issue  of  a  warrant 
of  attachment  will  be  very  rare.  (For  form,  see  Appendix  14.) 
Whenever  it  becomes  necessary  to  issue  a  warrant  of  attachment,  the 
judge  advocate  or  summary  court-martial  will  direct  or  deliver  it  for 
execution  to  an  officer  designated  by  the  department  commander  for 
the  purpose.  (12  Op.  Atty.  Gen.,  501.)  As  the  arrest  of  a  per- 
son under  a  warrant  of  attachment  involves  depriving  him  of  his 
liberty,  the  authority  for  such  action  may  be  inquired  into  by  a 
writ  of  habeas  corpus.  For  this  reason  the  officer  executing  the  war- 
rant of  attachment  should  be  provided  with  the  following  papers  to 
enable  him  to  make  a  full  return  in  case  a  writ  of  habeas  corpus 
is  served  upon  him : 

{a)  A  copy  of  the  charges  in  the  case,  sworn  to  be  a  full  and  true 
copy  of  the  original  by  the  judge  advocate  of  the  court  (or  summary 
court-martial). 

{b)  A  copy  of  the  order  appointing  the  court-martial,  sworn  to  be 
a  full  and  true  copy  of  the  original  by  the  judge  advocate  of  the 
court  (or  summary  court-martial). 

{c)  The  original  subpoena,  showing  proof  of  service  of  same. 

{d)  An  affidavit  of  the  judge  advocate  or  summary  court-martial 
that  the  person  being  attached  is  a  material  witness  in  the  case ;  that 
he  has  failed  and  neglected  to  appear,  although  sufficient  time  has 
elapsed  for  that  purpose;  and  that  no  valid  excuse  has  been  offered 
for  such  failure  to  appear. 

{e)  The  original  warrant  of  attachment. 

In  executing  such  process  it  is  lawful  to  use  only  such  force  as  may 
be  necessary  to  bring  the  witness  before  the  court.  Whenever  force 
is  actually  required  the  post  commander  nearest  the  residence  of  the 
witness  will  furnish  a  military  detail  sufficient  to  execute  the  process. 

169.  Habeas  corpus  proceedings  in  connection  with  attachments. — 
{a)  If,  in  executing  a  warrant  of  attachment,  the  officer  detailed  for 
that  purpose  should  be  served  with  a  writ  of  habeas  corpus  from  any 
United  States  court,  or  by  a  United  States  judge,  for  the  production 
of  the  witness,  the  writ  will  be  promptly  obeyed,  and  the  person 
alleged  to  be  illegally  restrained  of  his  liberty  will  be  taken  before 
the  court  from  which  the  writ  has  issued,  and  a  return  made  setting 
forth  the  reasons  for  his  restraint.  The  officer  upon  whom  such  a 
writ  is  served  will  at  once  report,  by  telegraph,  the  fact  of  such  serv- 
ice direct  to  The  Adjutant  General  of  the  Army  and  to  the  command- 
ing general  of  the  department.     (See  Appendix  15,  Form  A.) 

{b)  If,  however,  the  writ  of  habeas  corpus  is  issued  by  any  State 
court  (or  a  State  judge)  it  will  be  the  officer's  duty  to  make  respectful 
return,  in  writing,  informing  the  court  that  he  holds  the  person 
named  in  the  writ  by  authority  of  the  United  States  pursuant  to  a 
warrant  of  attachment  issued  under  section  3  of  the  act  of  Congress 

91487°— 17 7 


82  MAK-UAL   FOR   COURTS-MARTIAL. 

approved  August  29,  1916  (A.  W.  22),  by  a  judge  advocate  of  a  law- 
fully convened  general  or  special  court-martial  (or  by  a  summary 
court-martial),  and  that  the  Supreme  Court  of  the  United  States 
has  decided  that  State  courts  and  judges  are  without  jurisdiction  in 
such  cases.  (See  Appendix  15,  Form  B.)  After  having  made  the 
above  return  to  a  writ  issued  by  a  State  court  or  judge,  it  is  the  duty 
of  the  officer  to  hold  the  prisoner  in  custody  under  his  warrant  of 
attachment,  and  to  refuse  obedience  to  the  mandate  or  process  of  any 
government  except  that  of  the  United  States.  Consequently,  it  is 
his  duty  not  to  take  the  prisoner,  nor  suffer  him  to  be  taken,  before  a 
State  judge  or  court  upon  a  writ  of  habeas  corpus  issued  under  State 
authority. 

170.  Punishment  for  refusal  to  appear  or  testify. — Although  the 
attendance  of  a  witness  as  above  described  can  be  enforced,  there  is  no 
power  in  a  court-martial  itself  to  compel  a  witness  to  testify  or  to 
punish  him  for  not  testifying.  The  only  procedure  is  that  provided 
in  A.  W.  23,  as  follows: 

Every  person  not  subject  to  rmlitary  law^  who  being  duly  sub- 
poenaed to  appear  as  a  witness  before  {a)  any  military  court,  com- 
mission, court  of  inquiry,  or  board,  or  {b)  any  officer,  military  or 
civil,  designated  to  take  a  deposition  to  be  read  in  evidence  before 
such  court,  commission,  court  of  inquiry,  or  board,  willfully  {a) 
neglects  or  refuses  to  appear,  or  (&)  refuses  to  qualify  as  a  witness, 
or  to  testify,  or  (<?)  produce  documentary  evidence  which  such  person 
may  have  been  legally  subpoenaed  to  produce,  shall  be  deemed 
guilty  of  a  misdemeanor,  for  which  such  person  shall  be  punished  on 
information  in  the  district  court  of  the  United  States,  or  in  a  court  of 
original  criminal  jurisdiction  in  any  of  the  Territorial  possessions  of 
the  United  States,  jurisdiction  being  hereby  conferred  upon  such 
courts  for  such  purpose ;  and  it  shall  be  the  duty  of  the  United  States 
district  attorney  or  the  officer  prosecuting  for  the  Government  in  any 
such  court  of  original  criminal  jurisdiction,  on  the  certification  of  the 
facts  to  him  by  the  military  court,  commission,  court  of  inquiry,  or 
board,  to  file  an  information  against  and  prosecute  the  person  so 
offending,  and  the  punishment  of  such  person,  on  conviction,  shall  be 
a  fine  of  not  more  than  $500,  or  imprisonment  not  to  exceed  six 
months,  or  both,  at  the  discretion  of  the  court:  Provided^  That  the 
fees  of  such  witness  and  his  mileage,  at  the  rates  allowed  to  witnesses 
attending  the  courts  of  the  United  States,  shall  be  duly  paid  or 
tendered  said  witness,  such  amounts  to  be  paid  out  of  the  appropria- 
tion for  the  compensation  of  witnesses.     (A.  W.  23.) 

[Note. — If  an  officer  who  is  charged  with  serving  a  subpoena  pays  the  neces- 
sary fees  and  mileage  to  a  witness,  taking  a  receipt  therefor,  he  is  entitled  to 
reimbursement.  (Dec.  Comp.  Treas.,  Sept.  10,  1901,  published  in  Cir.  38, 
A.  G.  O.,  1901.)] 


COURTS-MARTIAL WITNESSES  AND  DEPOSITIONS.  83 

171.  Same  in  Philippine  Islands. — Every  person  not  belonging  to  the 
Army  of  the  United  States,  who,  in  the  Philippine  Islands,  being 
duly  subpoenaed  to  appear  therein  as  a  witness  before  a  general  court- 
martial  of  said  Army  (or  naval  court),  willfully  neglects  or  refuses 
to  appear,  or  refuses  to  qualify  as  a  witness,  or  to  testify,  or  produce 
documentary  evidence,  which  such  person  may  have  been  legally  sub- 
poenaed to  produce,  shall  be  punished,  by  a  fine  of  not  more  than 
$500,  United  States  currency,  or  imprisonment  not  to  exceed  six 
months,  or  both,  at  the  discretion  of  the  court,  and  it  shall  be  the 
duty  of  the  proper  fiscal  or  prosecuting  officer,  on  the  certification 
of  the  facts  to  him  by  the  general  court-martial,  to  file  in  the  proper 
court  a  complaint  against  and  prosecute  the  person  so  offending: 
Provided^  That  $1.60,  United  States  currency,  for  each  day's  attend- 
ance, and  5  cents.  United  States  currency,  per  mile  for  going  from 
his  residence  to  the  place  of  trial  or  hearing,  and  5  cents  per  mile 
for  returning,  shall  be  duly  tendered  to  said  witness:  Provided 
further^  That  no  witness  shall  be  compelled  to  incriminate  himself 
or  to  answer  any  question  which  may  tend  to  incriminate  him.  (Acts 
1130  and  1243,  P.  I.  Commission.)  The  provisions  of  this  paragraph 
do  not  apply  to  witnesses  before  special  and  summary  courts. 

[Note. — Employees  of  the  civil  government  of  the  Philippine  Islands,  paid 
from  insular  funds  of  the  islands,  are  held  not  to  be  in  the  employ  of  the 
United  States.  (Dec.  Comp.  Treas.,  Aug.  20,  1902,  published  in  Cir.  45,  A.  G.  O., 
1902.)] 

172.  Tender  of  fees  preliminary  to  prosecution. — In  case  a  civilian  wit- 
ness is  duly  subpoenaed  under  the  authority  of  A.  W.  22  and  willfully 
neglects  or  refuses  to  appear  or  refuses  to  qualify  as  a  witness,  or  to 
testify  or  produce  documentary  evidence  which  he  may  have  been 
legally  subpoenaed  to  produce,  he  will  at  once  be  tendered  or  paid 
by  the  nearest  quartermaster  one  day's  fees  and  mileage  for  the 
journeys  to  and  from  the  court,  and  will  thereupon  be  again  called 
upon  to  comply  with  the  requirements  of  the  law.  Upon  failing  the 
second  time  to  comply  with  the  requirements  of  the  law  a  complete 
report  of  the  case  will  be  made  to  the  officer  exercising  general  court- 
martial  jurisdiction  over  the  command  with  a  view  to  presenting  the 
facts  to  the  Department  of  Justice  for  the  punitive  action  contem- 
plated in  A.  W.  23. 

173.  Contempts — (a)  Authority  to  punish. — A  court-martial  may 
punish,  at  discretion,  subject  to  the  limitations  contained  in  A.  W.  14, 
any  person  who  uses  any  menacing  words,  signs,  or  gestures  in  its 
presence,  or  who  disturbs  its  proceedings  by  any  riot  or  disorder. 
(A.  W.  32.)  The  power  to  so  punish  is  vested  in  general,  special, 
and  summary  courts-martial.  Punishments  adjudged  for  contempt, 
like  other  punishments  adjudged  by  courts-martial,  require  the 
approval  of  the  reviewing  authority  in  order  to  be  effective. 


84  MANUAL   FOR   COURTS-MARTIAL. 

(b)  Persons  who  may  be  punished  for  contempt. — The  words  "  any 
person,"  as  used  in  A.  W.  32,  appear  to  include  civilians  as  well  as 
military  persons.  In  view,  however,  of  the  embarrassment  liable  to 
attend  the  execution,  through  military  machinery,  of  a  punishment 
adjudged  against  a  civilian  for  a  contempt  under  the  article,  it 
would  generally  be  advisable  for  the  court  to  confine  itself  to  causing 
the  party  to  be  removed  as  a  disorderly  person,  and,  in  an  aggra- 
vated instance,  to  procure  a  complaint  to  be  lodged  against  him  for 
breach  of  the  public  peace.     (Winthrop,  p.  462.) 

(c)  Direct  and  constructive  contempts. — A  direct  contempt  is  one 
committed  in  the  presence  or  immediate  proximity  of  a  court  while 
it  is  in  session.  An  indirect  or  constructive  contempt  is  one  not  so 
committed.  The  conduct  described  in  A.  W.  32  constitutes  direct  con- 
tempt. But  conduct  on  the  part  of  a  person  subject  to  military  law 
and  amounting  to  a  constructive  contempt  may  be  punished  like  any 
other  conduct  that  is  prejudicial  to  good  order  and  military  discipline, 
by  bringing  the  person  to  trial  before  another  court  on  charges  under 
A.  W.  96. 

(d)  Procedure. — Where  a  contempt  within  the  description  of  A.  W. 
32  has  been  committed  and  the  court  deems  it  proper  that  the  offender 
shall  be  punished,  the  proper  course  is  to  suspend  the  regular  busi- 
ness and,  after  giving  the  party  an  opportunity  to  be  heard  in  ex- 
planation, to  proceed,  if  the  explanation  is  insufficient,  to  impose  a 
punishment,  resuming  thereupon  the  original  proceedings.  The 
action  taken  is  properly  summarj^,  a  formal  trial  not  being  called  for. 
Close  confinement  in  quarters  or  in  the  guardhouse  during  trial  of 
the  pending  case  or  forfeiture  of  a  reasonable  amount  of  pay,  has 
been  the  more  usual  punishment.  A  full  record  of  the  proceeding 
is  at  once  made,  not  separate  from,  but  in  and  as  a  part  of  the  regular 
record  of  the  case  on  trial,  showing  the  occasion  and  circumstances 
of  the  contempt,  the  words  or  acts  which  constituted  it,  the  excuse 
or  statement,  if  any,  of  the  party,  the  action  taken  by  the  court,  its 
judgment  and  the  disposition  of  the  offender.  (Winthrop,  p.  469.) 
Instead  of  proceeding  against  a  military  person  for  contempt  in  the 
manner  contemplated  by  this  article,  the  alternative  course  may  be 
pursued  of  bringing  him  to  trial  before  a  new  court  on  a  charge  of  a 
disorder  under  A.  W.  96. 

Section  II. 

DEPOSITIONS. 

174.  When  admissible. — A  duly  authenticated  deposition  taken  upon 
reasonable  notice  to  the  opposite  party  may  be  read  in  evidence  be- 
fore any  military  court  or  commission  in  any  case  not  capital,  or  in 
any  proceeding  before  a  court  of  inquiry  or  a  military  board,  if  such 


COURTS-MARTIAL WITNESSES   AND  DEPOSITIONS.  85 

deposition  be  taken  when  the  witness  resides,  is  found,  or  is  about  to 
go  beyond  the  State,  Territory,  or  District  in  which  the  court,  com- 
mission, or  board  is  ordered  to  sit,  or  beyond  the  distance  of  100 
miles  from  the  place  of  trial  or  hearing,  or  when  it  appears  to  the 
satisfaction  of  the  court,  commission,  board,  or  appointing  authority 
that  the  witness,  by  reason  of  age,  sickness,  bodily  infirmity,  impris- 
onment, or  other  reasonable  cause,  is  unable  to  appear  and  testify  in 
person  at  the  place  of  trial  or  hearing:  Provided^  That  testimony 
bv  deposition  may  be  adduced  for  the  defense  in  capital  cases. 
(A.  W.  25.) 
[Note. — For  form  for  interrogatories  and  depositions,  see  Appendix  12.] 

175.  Before  whom  taken. — Depositions  to  be  read  in  evidence  before 
military  courts,  commissions,  courts  of  inquiry,  or  military  boards, 
or  for  other  use  in  military  administration,  may  be  taken  before  and 
authenticated  by  any  officer,  military  or  civil,  authorized  by  the  laws 
of  the  United  States  or  by  the  laws  of  the  place  where  the  deposition 
is  taken  to  administer  oaths.     (A.  W.  26.) 

176.  Interrogatories,  how  submitted. — The  procedure  for  submitting 
interrogatories  for  a  deposition  is  as  follows: 

{a)  The  party  desiring  the  deposition  submits  to  the  opposite 
party  the  interrogatories  which  he  wishes  propounded  to  the  person 
whose  deposition  he  desires,  and  the  opposite  party  then  submits  to 
him  such  cross -interrogatories,  if  any,  as  he  may  desire.  Such  addi- 
tional direct  and  cross-interrogatories  ma}^  be  submitted  as  desired; 
or 

{h)  The  party  desiring  the  deposition  submits  to  the  court,  mili- 
tary commission,  or  board  the  interrogatories  which  he  wishes  pro- 
pounded to  the  person  whose  deposition  he  desires.  The  opposite 
party  then  submits  to  the  court,  military  commission,  or  board  such 
cross-interrogatories,  if  any,  as  he  may  desire.  The  court,  military 
commission,  or  board  then  submits  such  additional  interrogatories 
as  they  may  deem  proper  and  desirable,  and  such  additional  direct 
and  cross-interrogatories  may  be  submitted  as  are  desired. 

((?)  Where  the  court,  military  commission,  or  board  desires  that 
the  deposition  of  a  particular  person  be  obtained,  it  will  cause  in- 
terrogatories to  be  prepared  accordingly.  The  prosecution  and  de- 
fense (or  other  party  or  parties  in  interest)  then  submit  such  inter- 
rogatories as  they  may  desire.  Such  additional  interrogatories  may 
be  included  as  are  desired  by  the  court,  military  commission  or  board, 
or  by  a  party  in  interest. 

177.  Procedure  to  obtain  deposition. —  {a)  All  the  interrogatories  to 
be  propounded  to  the  person  are  entered  upon  the  form  for  interroga- 
tories and  deposition,  and  the  trial  judge  advocate,  summary  court, 


86  MANUAL   FOR  COURTS-MARTIAL. 

or  recorder  will  take  appropriate  steps  to  cause  the  desired  deposition 
to  be  taken  with  the  least  practicable  delay.  In  an  ordinary  case 
he  will  either  send  the  interrogatories  to  the  commanding  officer  of 
the  post,  recruiting  station,  or  other  military  command  at  or  nearest 
which  the  person  whose  deposition  is  desired  is  stationed,  resides,  or 
is  understood  to  be,  or  will  send  them  to  some  other  responsible  per- 
son, preferably  a  person  competent  to  administer  oaths,  at  or  near 
the  place  at  which  the  person  whose  deposition  is  desired  is  under- 
stood to  be.  In  a  proper  case  the  interrogatories  may  be  sent  to  the 
department  or  other  superior  commander  or  to  the  witness  himself, 
and  in  any  case  they  will,  when  necessary,  be  accompanied  by  a 
proper  explanatory  letter. 

(b)  When  interrogatories  are  received  by  a  commanding  officer  he 
will  either  take  or  cause  to  be  taken  the  deposition  thereon.  He  may 
send  an  intelligent  enlisted  man — ^preferably  a  noncommissioned 
officer,  if  available — ^to  the  necessary  place  for  the  purpose  of  ob- 
taining the  deposition,  or  he  may  properly  arrange  by  mail  or  other- 
wise that  the  deposition  be  taken.  The  deposition  will  be  taken  with 
the  least  practicable  delay,  and  when  taken  will  be  sent  at  once  direct 
to  the  judge  advocate  of  the  court-martial  trying  the  case  or  other 
proper  person. 

(c)  If  the  witness  whose  deposition  is  desired  is  a  civilian,  the 
judge  advocate  or  other  proper  person  sending  interrogatories  as 
above  will  inclose  with  them  a  prepared  voucher  for  the  fees  and  mile- 
age of  the  witness,  leaving  blank  such  spaces  provided  therein  as  it 
may  be  necessary  to  leave  blank,  accompanied  by  the  required  number 
of  copies  of  the  orders  appointing  the  court,  military  commission,  or 
board.  The  judge  advocate,  sunmiary  court,  or  recorder  will  also  send 
with  the  interrogatories  duplicate  subpoena  requiring  the  witness  to 
appear  in  person  at  a  time  and  place  to  be  fixed  by  the  officier,  mili- 
tary or  civil,  who  is  to  take  the  deposition.  If  the  name  of  this  officer 
is  not  known,  the  space  provided  for  it  will  be  left  blank.  If  a  mili- 
tary officer  takes  the  deposition,  he  will  complete  the  witness  voucher, 
certify  it,  and  transmit  it  to  the  nearest  disbursing  quartermaster 
for  payment.  When  the  deposition  is  to  be  taken  by  a  civil  officer  he 
will  be  asked  to  obtain  and  furnish  to  the  military  officer,  requested 
or  designated  to  cause  the  deposition  to  be  taken,  the  necessary  data 
for  the  completion  of  the  witness  voucher,  and  the  latter  will  com- 
plete the  voucher,  certify  it,  and  transmit  it  to  the  nearest  disburs- 
ing quartermaster  for  payment. 

In  the  case  of  a  military  witness  subpoena  will  not  accompany  the 
interrogatories,  but  the  officer  before  whom  the  deposition  is  to  be 
taken  will  take  the  necessary  steps  to  have  the  witness  appear  at  the 
proper  time  and  place. 


COURTS-MARTIAL WITNESSES   AND   DEPOSITIONS-  87 

178.  Tracing  delayed  depositions. — Judge  advocates  will  be  prompt  in 
preparing  and  forwarding  interrogatories.  If  the  deposition  is  not 
received  within  a  reasonable  time,  a  letter  of  inquiry  will  be  sent; 
and,  if  a  prompt  explanation  of  the  delay  is  not  received,  the  depart- 
ment commander  or  other  proper  superior  will  be  advised. 

179.  Designation  of  deponent  by  official  title. — ^Where  it  is  desired  to 
take  the  deposition  of  some  person  holding  a  certain  office  or  position, 
as,  for  instance,  a  troop  commander,  first  sergeant,  quartermaster  ser- 
geant, cashier  of  a  bank,  post  exchange  officer,  etc.,  and  the  name  of 
the  person  is  unknown,  interrogatories  may  be  prepared  in  the  usual 
way  for  submission  to  the  person  holding  the  office  or  position,  with- 
out naming  him  unless  it  shall  appear  that  the  accused  will  be  preju- 
diced thereby. 

180.  Deponent's  answer  to  be  responsive. — Before  a  witness  gives  his 
answers  to  the  interrogatories  they  should  be  read  and,  if  necessary, 
explained  to  him,  or  he  should  be  permitted  to  read  them  over  in 
order  that  his  answers  may  be  clear,  full,  and  to  the  point.  The  per- 
son taking  the  deposition  should  not  advise  the  witness  how  he  should 
answer,  but  he  should  endeavor  to  see  that  the  witness  understands 
the  questions,  and  what  is  desired  to  be  brought  out  by  them,  and  that 
his  answers  are  clear,  full,  and  to  the  point. 

181.  Fees  for  taking  depositions. — Civil  officers  before  whom  depo- 
sitions are  taken  for  use  before  courts-martial  will  be  paid  the  fees 
allowed  by  the  law  of  the  place  where  the  depositions  are  taken. 

182.  Taking  depositions  in  foreign  country. — If  the  evidence  desired 
from  a  witness  residing  in  a  foreign  country  is  necessary  and  mate* 
rial  and  is  desired  to  be  read  before  a  court-martial,  military  commis- 
sion, court  of  inquiry,  or  military  board  sitting  within  any  of  the 
States  of  the  Union  or  the  District  of  Columbia,  interrogatories 
(accompanied  by  the  necessary  vouchers  for  fees  and  mileage)  will 
ordinarily  be  forwarpled  through  military  channels  to  The  Adjutant 
General  of  the  Army.  They  will  then  be  transmitted  by  the  Secre- 
tary of  War  to  the  Secretary  of  State,  with  the  request  that  they  be 
sent  to  the  proper  consul  of  the  United  States  and  the  deposition  of 
the  witness  be  taken.  In  the  case  of  troops  serving  along  the  inter- 
national boundaries,  outside  of  the  United  States  proper,  or  in 
foreign  countries,  the  officer  exercising  general  court-martial  juris- 
diction may,  in  his  discretion,  detail  an  officer  to  take  the  deposition 
of  a  civilian  witness,  or  he  may  send  the  interrogatories  direct  to  the 
consul  of  the  United  States  nearest  the  place  of  residence  of  the 
witness  with  the  request  that  the  deposition  be  taken.  In  the  latter 
case  the  interrogatories  will  be  accompanied  by  the  proper  vouchers 
for  the  fees  and  mileage  of  the  witness. 

[Note. — For  use  of  depositions  as  evidence,  see  Chap.  XI,  Evidence.] 


88  MANUAL   FOR   COUKTS-MAKTIAL. 

Section  III. 
FEES,  MILEAGE,  AND  EXPENSES  OF  WITNESSES. 

183.  OflSlcers  and  soldiers,  active  or  retired. — OiRcers  and  soldiers  on 

the  active  list  required  to  attend  a  court-martial  as  witnesses  are 

not  entitled  to  receive  mileage  and  fees  like  civilian  witnesses  but 

are  entitled  to  such  travel  allowances  as  the  law  allows  to  officers 

and  soldiers  traveling  under  orders ;  but  a  retired  officer,  not  assigned 

to  active  duty,  or  a  retired  soldier,  is  entitled  to  the  per  diem  and 

mileage  provided  for  civilian  witnesses  not  in  Government  employ. 

[Note. — The  fees,  mileage,  and  expenses  of  persons  in  the  military  service  or 
of  civilians  in  the  Government  employ  duly  subpoenaed  and  appearing  before 
civil  courts  whether  State  or  Federal  are  payable  by  the  civil  authorities.] 

184.  Civilians  in  Government  employ. — Civilians  in  the  employ  of  the 
Government  when  traveling  upon  summons  as  witnesses  before 
military  courts  are  entitled  to  transportation  in  kind  from  their 
place  of  residence  to  the  place  where  the  court  is  in  session  and 
return.  If  no  transportation  be  furnished,  they  are  entitled  to 
reimbursement  of  the  cost  of  travel  actually  performed  by  the  short- 
est usually  traveled  route,  including  transfers  to  and  from  railway 
stations,  at  rates  not  exceeding  50  cents  for  each  transfer,  and  the 
cost  of  sleeping-car  accommodations  to  which  entitled  or  steamer 
berth  when  an  extra  charge  is  made  therefor.  They  are  also  en- 
titled to  reimbursement  of  the  actual  cost  of  meals  and  rooms  at  a 
rate  not  exceeding  $3  per  day  for  each  day  actually  and  unavoidably 
consumed  in  travel  or  in  attendance  upon  the  court  under  the  order 
or  summons.  No  allowance  will  be  made  to  them  when  attendance 
upon  court  does  not  require  them  to  leave  their  stations. 

185.  Civilians  not  in  Gt)vernment  employ. — A  civilian,  not  in  Govern- 
ment employ,  duly  summoned  to  appear  as  a  witness  before  a  mili- 
tary court,  conmiission,  or  board  or  at  a  place  where  his  deposition 
is  to  be  taken  for  use  before  such  court,  commission,  or  board,  will 
receive  $1.50  for  each  day  of  his  actual  attendance  before  such  court, 
commission,  or  board  or  for  the  purpose  of  having  his  deposition 
taken,  and  5  cents  a  mile  for  going  from  his  place  of  residence  to 
the  place  of  trial  or  of  the  taking  of  his  deposition,  and  5  cents  a 
mile  for  returning,  except  as  follows: 

{a)  In  Porto  Rico  and  Cuba  he  will  receive  $1.50  a  day  while  in 
attendance  as  above  stated  and  15  cents  for  each  mile  necessarily 
traveled  over  stage  line  or  by  private  conveyance  and  10  cents  for 
each  mile  over  any  railway  or  steamship  line. 

{h)  In  Alaska,  east  of  the  one  hundred  and  forty-first  degree  of 
west  longitude,  he  will  receive  $2  a  day  while  in  attendance  as  above 
stated  and  10  cents  a  mile,  and  west  of  said  degree  $4  a  day  and  15 
cents  a  mile. 


COUBTS-MARTIAL WITNESSES   AND   DEPOSITION'S.  89 

(c)  In  the  States  of  Wyoming,  Montana,  Washington,  Oregon, 
California,  Nevada,  Idaho,  Colorado,  Utah,  New  Mexico,  and  Ari- 
zona will  receive  $3  a  day  for  the  time  of  actual  attendance  as  above 
stated,  and  for  the  time  necessarily  occupied  in  going  to  and  return- 
ing from  the  same,  and  15  cents  for  each  mile  necessarily  traveled 
over  any  stage  line  or  by  private  conveyance  and  5  cents  for  each 
mile  by  any  railway  or  steamship. 

[Note. — 1.  Travel  must  be  estimated  by  the  shortest  usually  traveled  route — 
by  established  lines  of  railroad,  stage,  or  steamer — the  time  occupied  to  be 
determined  by  the  official  schedules,  reasonable  allowance  being  made  for 
unavoidable  detention. 

2.  These  rates  apply  to  the  Philippine  Islands.     (See  Cir.  45,  A.  G.  O.,  1902.) 

3.  A  civilian  not  in  Government  employ,  when  furnished  transportation  on 
transport  or  other  Government  conveyance,  is  entitled  to  57.142  per  cent  of  5 
cents  per  mile  (equal  to  2.857  cents  per  mile).  (Comp.  Dec,  Aug.  20,  1902, 
published  in  Cir.  45,  A]  G.  O.,  1902.)] 

186.  Payment  for  return  journey. — The  charges  for  return  journeys 
of  witnesses  will  be  made  upon  the  basis  of  the  actual  charges  allowed 
for  travel  to  the  place  of  giving  testimony,  and  the  entire  account 
thus  completed  will  be  paid  upon  discharge  from  attendance,  without 
waiting  for  completion  of  return  travel. 

187.  Contents  of  vouchers. — The  items  of  expenditure  authorized  for 
civilian  witnesses  will  be  set  forth  in  detail  and  made  a  part  of  each 
voucher  for  reimbursement.     No  other  items  will  be  allowed. 

The  certificate  of  the  judge  advocate,  or  other  officer,  will  be  evi- 
dence of  the  fact  and  period  of  attendance,  and  will  be  made  upon 
the  voucher. 

When  payment  is  made  under  the  provisions  of  paragraph  184, 
ihe  correctness  of  the  items  will  be  attested  by  the  affidavit  of  the 
witness,  to  be  made,  when  practicable,  before  the  oflker  who  certifies 
the  voucher. 

188.  Witness  in  several  trials  on  same  day. — A  civilian  attending  as  a 
witness  in  several  court-martial  trials  on  the  same  day  is  entitled  to 
a  separate  fee  for  attendance  in  each  case  (Dig.  Dec.  Comp.,  1894  to 
1902,  p.  476),  but  will  receive  mileage  in  only  one  case. 

189.  Voucher  to  be  delivered  to  witness. — A  civilian  witness  not  in 
Government  employ  who  appears  to  testify  is  entitled,  upon  his  dis- 
charge from  attendance,  to  receive  from  the  judge  advocate,  if  any 
(or  summary  court,  recorder  of  court  of  inquiry  or  board,  etc.),  his 
witness  voucher  properly  filled  out.  If  not  practicable  to  deliver  to 
the  witness  his  voucher  at  that  time  his  address  will  be  obtained  and 
his  witness  voucher  will  be  promptly  forwarded  to  the  nearest  dis- 
bursing quartermaster.  To  entitle  a  witness  to  the  payment  of  fees 
and  mileage  it  is  not  essential  that  he  should  produce  a  subpoena. 

190.  Lost  voucher. — ^Yhere  the  voucher  of  a  witness  has  been  lost,  a 
new  voucher  may  be  issued  by  the  judge  advocate  upon  a  satisfactory 


90  MANUAL  FOR  COURTS-MARTIAL. 

showing  of  such  loss,  supported  by  affidavit.  The  new  voucher 
should  be  so  noted  as  to  indicate  its  character  and  should  be  for- 
warded to  the  Quartermaster  General  for  settlement. 

191.  Fees  for  service  of  subpoenas. — There  is  no  fee  or  compensation 
fixed  by  statute  or  regulation  for  the  service  of  subpoenas  to  secure 
the  attendance  of  witnesses  before  military  courts.  Ordinarily  serv- 
ice will  be  made  by  an  officer  or  soldier,  but  if  service  by  a  civilian 
is  deemed  by  the  judge  advocate  or  department  commander  to  be 
preferable,  the  services  of  a  civilian  may  be  used,  and  the  fees  and 
mileage  allowed  by  law  in  that  locality  for  similar  services  may  be 
paid  by  a  quartermaster  from  the  appropriation  "  for  expenses  of 
courts-martial,  etc." 

192.  Employment  of  experts. — When  the  employment  of  an  expert 
is  necessary  during  a  trial  by  court-martial  the  necessity  for  such  em- 
ployment should  be  made  to  appear  by  a  resolution  of  the  court. 
This  resolution  will  be  forwarded  by  the  judge  advocate,  in  advance 
of  the  employment,  to  the  Secretary  of  War  through  the  authority 
appointing  the  court,  with  a  request  for  authority  to  employ  the 
expert  and  for  a  decision  as  to  the  compensation  to  be  paid  him. 
The  request  should,  if  practicable,  state  the  compensation  that  is 
recommended  by  the  judge  advocate.  The  compensation  of  the  ex- 
pert, including  the  compensation  for  photographs  that  may  be  neces- 
sary in  connection  with  his  testimony,  will  be  paid  out  of  the  ap- 
propriation "  for  expenses  of  courts-martial,  etc." 

[Note. — Where,  in  advance  of  trial,  the  judge  advocate  knows  that  the  em- 
ployment of  an  expert  will  be  necessary,  he  should,  without  delay,  apply  through 
the  appointing  authority  to  the  Secretary  of  War  for  authority  to  employ  the 
expert,  stating  the  necessity  therefor  and  probable  cost  thereof.] 

193.  Expenses  of  courts-martial,  etc.,  how  payable. — The  fees  of  civil- 
ian witnesses,  the  mileage  of  both  civil  and  military  witnesses,  the 
legal  fee  of  the  proper  official  for  certified  copy  of  a  marriage  certifi- 
cate, the  expense  of  procuring  a  transcript  of  a  stenographer's  notes 
of  testimony  taken  before  a  United  States  commissioner,  the  fees  of 
a  notary  for  swearing  a  witness,  and  the  expenses  (including  rail- 
way fare  and  hotel  bills)  of  a  United  States  consul  stationed  in  a 
foreign  country  in  taking  depositions,  when  such  items  are  incurred 
in  connection  with  a  trial  before  a  court-martial  or  military  commis- 
sion, or  investigation  before  a  court  of  inquiry,  are  paid  by  the 
Quartermaster  Corps  out  of  the  annual  appropriation  "  for  expenses 
of  courts-martial,  etc."  If  no  quartermaster  be  present  at  the  place 
where  the  court  is  sitting  the  vouchers  may  be  transmitted  direct  to 
any  quartermaster.     Such  vouchers  are  not  transferable. 

[I^OTE. — Blank  vouchers  may  be  procured  from  any  disbursing  quartermaster.  J 


CHAPTER  XI. 

COURTS-MARTIAL— EVIDENCE. 

(Revised  and  approved  by  Professor  Wigmore.) 


Section  I,  Introductory  provisions :  Page. 

194.  General  remarks 93 

195.  The  issues 1 94 

196.  Analysis  of  evidence  by  judge  advocate  and  counsel 95 

197.  Duties  of  court — Opening  statements 95 

198.  Rules  of  evidence  for  courts-martial 96 

199.  Rules  where  found 97 

200.  Rules  of  evidence  to  be  applied  irrespective  of  rank 98 

201.  Protection  of  witnesses 98 

202.  Evidence  must  be  material  and  relevant 98 

Section  II.  Circumstantial  evidence: 

203.  Circumstantial  evidence 99 

204 .  Illustration  of  difference  between  good  and  bad  circumstantial  evidence  99 

205.  Evidence  of  character  of  accused,  and  of  his  services 100 

206.  Motive,  etc 100 

Section  III.  Testimonial  e\'idence: 

207.  Testimonial  evidence 101 

208.  Competency  rule  in  general 101 

209.  Competency  of  witness 102 

210.  General  capacity  of  witness 102 

211.  Moral  incapacity  of  witness 102 

212.  Mental  incapacity  of  witness 102 

213.  Interest  or  bias 102 

214.  Where  accused  is  witness 103 

215 .  Procedure  where  accused  fails  to  testify  or  make  a  statement 103 

216.  Effect  of  turning  state's  evidence 104 

217.  Competency  of  accused  when  testifying  against  an  accomplice 104 

218.  Expert  capacity 104 

219.  Insanity  of  accused 104 

220.  Testimonial  knowledge 106 

221.  Hearsay  evidence 107 

222.  Dying  declarations 108 

223 .  Res  gestae 108 

224.  Evidence  of  conspirators  and  accomplices 110 

225.  Confessions 110 

226.  Admissions  against  interest 112 

227.  Privileged  communications 113 

228.  Privilege  of  wife  and  husband  to  testify 114  ■ 

229.  Telegrams  not  privileged 115 

230.  Confidential  papers 115 

91 


92  MANUAL   FOR   COUETS-MAETIAL. 

Section  III. — Testimonial  evidence — Continued.  Page. 

231.  Communications  from  officers  or  soldiers  to  medical  officer  not  privi- 

leged   115 

232.  Communications  between  civilian  physician  and  patients  not  privi- 

leged  - 115 

233.  Compulsory  self-crimination  prohibited 115 

(a)  Rule  as  to  questions  tending  to  degrade 116 

(6)  Where  pri\dlege  as  to  self-crimination  ceases 116 

234.  Privilege  against  self-crimination  is  a  personal  one 116 

235.  Procedure  where  alleged  incriminating  question  is  asked 117 

236.  Not  self-crimination  to  require  accused  to  submit  to  physical  exami- 

nation   117 

237.  Manner  of  proving  contents  of  writing 118 

Section  IV.     Documents: 

238.  Public  records 119 

239.  Certain  official  writings  are  evidence  of  facts  recited  therein 120 

240.  Comparison  of  handwriting 120 

241.  Use  of  memoranda 121 

242.  Memorandum  as  evidence 121 

243.  Memorandum  for  refreshing  recollection 121 

244.  Books  of  account 121 

245.  Maps,  photographs,  etc 122 

Section  V.  Examination  of  witnesses: 

246.  Witnesses  examined  apart  from  each  other 122 

247.  Objections  to  competency;  when  made 122 

248.  Number  of  witnesses  required 122 

249.  Order  of  examination  of  witnesses 123 

250.  Direct  examination 123 

251.  Cross-examination 123 

252.  Redirect  and  recross  examination 124 

253.  Examination  by  the  court 124 

254.  Leading  questions 124 

255.  Recalling  of  witnesses 125 

Section  VI.  Credibility  of  witnesses: 

256.  What  credibilty  consists  in 125 

257.  Proof  of  character  by  general  reputation. .  ^ 126 

258.  Conviction  of  crime 126 

259.  Self-contradiction : 126 

260.  Prejudice,  bias,  etc 126 

261.  Credibility  of  accused  as  a  witness -. 126 

262.  Proof  of  contradictory  statements  out  of  court 126 

Section  VII.  Depositions  and  former  testimony: 

263.  Depositions  admissible - 127 

264.  Depositions  for  defense  in  capital  cases 127 

265.  Objections  as  to  competency  of  witnesses  and  admissibility  of  evidence  127 

266.  Examination  of  deposition  by  counsel 127 

267.  Reading  of  depositions 127 

268.  Miscellaneous  provisions  as  to  depositions 128 

269.  Affidavits  not  admissible 128 

270.  Certificate  of  discharge 128 

271.  Statement  of  service 128 

272.  Former  testimony  before  court  of  inquiry 128 

273.  Evidence  of  pardon 128 

274.  Evidence  of  former  trial  by  court-martial  or  civil  court 129 

275.  Former  testimony  in  civil  courts  and  courts-martial 129 


EVIDENCE.  93 

Section  VIII.  Presumptions:  Page. 

276.  Presumptions 130 

277.  Presumptions  of  law 130 

278.  Presumptions  of  fact .' 130 

279.  Prima  facie  evidence 131 

280.  Intent  in  connection  with  crime 131 

281.  Intent  in  military  cases 131 

282.  Ignorance  of  law 132 

283.  Ignorance  of  fact "...•..  133 

284.  Evidence  of  desertion 133 

(a)  Statutory  rules  of  evidence 134 

285.  Drunkenness  as  showing  absence  of  intent 135 

286.  Drunkenness  in  military  cases 136 

287 .  Proof  of  drunkenness 136 

288.  Reasonable  doubt  and  burden  of  proof 136 

Section  IX.  Judicial  notice : 

289.  Judicial  notice 137 


Section  I. 

INTRODUCTORY   PROVISIONS. 

194.  General  remarks. — The  oath  taken  by  members  of  general  and 
special  courts  require  them  to  try  and  determine  "  according  to 
evidence  "  the  matter  before  them.  A  summary  court,  although  it 
does  not  take  such  an  oath,  will  also  determine  the  matter  before  it 
solely  on  the  evidence  in  the  case,  and  no  evidence  would  be  admis- 
sible before  a  summary  court  that  is  not  admissible  before  general 
and  special  courts.  The  evidence  thus  referred  to,  according  to 
which  the  court  must  decide  the  case,  means  all  the  matters  of  fact 
which  the  court  permits  to  be  introduced,  or  of  which  it  takes  judicial 
notice,  with  a  view  to  prove  or  disprove  the  charges.  Every  item  of 
this  evidence  must  be  introduced  in  open  court,  and  it  would  be 
seriously  irregular  and  improper  for  any  member  of  the  court  to 
convey  to  other  members,  or  to  consider  himself,  any  personal  in- 
formation that  he  possessed  as  to  the  merits  of  the  case  or  the  charac- 
ter of  the  accused,  without  stating  it  in  open  court  and,  if  a  witness 
for  the  prosecution,  retiring  as  a  member  of  the  court,  as  provided  in 
A.  W.  8.  But  while  their  knowledge  of  the  facts  must  come  to  them 
from  the  evidence,  the  members  are  expected  to  utilize  their  common 
sense,  their  knowledge  of  human  nature  and  the  ways  of  the  world 
in  weighing  the  evidence  and  arriving  at  a  finding.  In  the  light  of 
all  the  circumstances  of  the  case  they  should  consider  the  inherent 
probability  or  improbability  of  the  evidence  given  by  the  several 
witnesses,  and  with  this  in  mind  the  court  may  properly  believe 
one  witness  and  disbelieve  several  whose  testimony  is  in.  conflict 
with  that  of  the  one. 


94  MANUAL  FOE   COURTS-MARTIAL. 

The  methods  which  are  employed  by  courts  of  justice  to  ascertain 
the  facts — ^that  is,  the  truth — respecting  any  past  transaction  closely 
resemble  those  resorted  to  by  an  individual  for  a  similar  purpose.  If 
A  desires  to  ascertain  whether  a  particular  act  did  or  did  not  take 
place,  he  addresses  himself  to  those  who  were  in  a  situation  to  witness 
the  occurrence  itself,  and  so  endeavors  to  obtain  from  each  person 
present  his  version  of  the  occurrence.  From  the  testimony  thus  ob- 
tained he  forms  his  conclusion  as  to  whether  or  not  the  act  took 
place.  In  the  course  of  his  investigation,  however,  he  finds  that  all 
who  were  present  and  witnessed  the  occurrence  as  bystanders  do  not 
give  testimony  of  equal  importance  or  value.  Some  having  greater 
powers  of  observation  or  better  memories  than  others  give  in  conse- 
quence more  valuable  testimony.  Some  of  the  witnesses,  being  chil- 
dren or  persons  of  weak  or  imsound  mind,  are  without  the  requisite 
mental  capacity  to  observe  facts  or  to  appreciate  their  relations  to 
each  other ;  others,  by  reason  of  their  bad  character,  are  not  regarded 
as  worthy  of  belief  by  their  fellow  citizens;  still  others  were  insane 
or  quite  under  the  influence  of  intoxicating  liquor  at  the  time  of  the 
occurrence,  and  so  were  incapacitated  from  observing.  A,  therefore, 
rejects  some  of  the  statements  as  entirely  untrustworthy;  to  others 
he  attaches  weight  in  proportion  to  their  worthiness  of  belief,  and 
so  endeavors  to  reach  a  conclusion  as  to  the  truth  of  the  occurrence  or 
event  which  was  the  original  subject  of  his  inquiry.     (Davis,  p.  244.) 

195.  The  issues. — It  is  well  to  understand,  in  the  beginning  of  this 
consideration  of  the  rules  of  evidence,  the  purpose  for  which  the  evi- 
dence is  to  be  introduced  in  the  manner  prescribed  and  laid  down 
by  the  rules.  The  purpose  is  to  elucidate  and  settle  the  issues  raised 
in  the  case  and  to  confine,  under  a  well  devised  and  developed  system 
of  limitations  that  experience  has  shown  to  best  conserve  the  inter- 
ests of  all  concerned,  the  evidence  to  such  issues. 

In  every  criminal  case  the  burden  is  on  the  prosecution  to  prove, 
by  relevant  evidence,  {a)  that  the  offense  charged  was  really  com- 
mitted, (&)  that  the  accused  committed  it,  and  (<?)  that  the  accused 
had  the  requisite  criminal  intent  at  the  time.  These  three  facts 
broadly  constitute  the  issues  in  the  case.  Incidental  issues  will  be 
formed  by  the  necessity  for  proof  of  the  essentials — that  is,  the  gist — 
of  an  offense  and  as  to  character.  Not  only  the  allegations  set  out 
in  the  charges  and  specifications,  but  the  component  parts  of  such 
allegations  as  well,  raise  the  issues  to  be  decided.  For  instance,  in  a 
case  of  larceny,  where  it  is  charged  that  the  accused  "did  take,  steal, 
and  carry  away  "  certain  articles  of  value,  the  component  parts  of  the 
allegation  not  specifically  set  out  are  that  such  articles  were  taken 
{a)  fraudulently  and  (&)  with  the  felonious  intent  of  depriving  the 
owner  of  them. 


EVIDENCE.  95 

196.  Analysis  of  evidence  by  judge  advocate  and  counsel. — ^The  ends  of 
justice  and  saving  of  time  of  all  concerned  imperatively  demand 
careful  analysis  by  both  judge  advocate  and  counsel  for  accused  of 
the  evidence  requisite  for  proof  of  and  defense  against  the  offenses 
charged.  As  a  prerequisite  to  such  analysis  the  law  as  to  the  offenses 
charged  should  be  studied  with  a  view  to  determining  the  essential 
elements  of  the  offense;  that  is,  the  things  that  must  be  proved  by 
the  judge  advocate  in  order  to  justify  a  conviction  and  those  that 
must  be  proved  by  the  defense  to  disprove  or  place  in  reasonable 
doubt  the  proof  offered  by  the  prosecution.  In  other  words,  the 
prosecution  and  defense  should  limit  the  proffer  of  testimony  to 
that  which  is  relevant  to  these  issues,  and  these  only,  and  should 
prepare  the  case  with  only  that  in  view.  The  essentials  or  gist  of 
the  offense  (see  Chap.  XVII)  should  be  so  clearly  defined  in  the 
preparation  of  the  case  that  both  the  judge  advocate  and  counsel 
for  accused  may  be  ready,  by  appropriate  objections  before  the  court, 
to  limit  the  introduction  of  evidence  to  relevant  matter  only,  bearing 
in  mind  that  only  the  essentials  of  the  offense  must  be  proved  and 
that  what  may  be  properly  considered  surplusage  may  be  disregarded. 

Before  trial  an  examination  of  all  the  sources  of  the  evidence  to 
be  submitted  should  be  made  by  the  judge  advocate  and  counsel  for 
accused  and  a  determination  as  to  the  order  in  which  it  will  be  intro- 
duced should  be  reached.  The  case  should  be  presented  in  sequence 
of  events  as  nearly  as  possible,  just  as  a  story  would  be  told  by  one 
party  who  had  seen  everything  to  which  the  different  witnesses  will 
testify.  When  several  offenses  are  charged,  especially  if  unrelated, 
the  evidence  should  be  directed  to  the  development  of  their  proof  in 
the  order  charged,  so  that  neither  the  court  nor  the  accused  may  be 
in  doubt  at  any  time  as  to  the  specific  offense  to  which  the  testimony 
being  given  refers.  Counsel  for  accused  should  adhere  to  the  same 
principle  in  presenting  evidence  for  the  defense. 

197.  Duties  of  court — Opening  statements. — ^If  the  court  will  augment 
the  preparation  invoked  in  the  preceding  paragraph  by  constantly 
bearing  in  mind  what  the  issues  are  and  holding  judge  advocate 
and  counsel  strictly  to  them,  it  will  tend  to  the  expedition  of  business, 
the  securing  of  justice,  and  the  conservation  of  the  interests  of  all 
concerned.  The  court  should  have  before  it  as  a  guide,  always  by 
reference  to  this  manual  in  each  case,  the  following  essential  con- 
siderations as  to  any  evidence  that  may  be  tendered:  (1)  That  it  is 
relevant  to  the  issue;  (2)  that  it  is  not  within  the  rule  rejecting 
hearsay  evidence;  (3)  that,  if  it  is  a  confession  or  admission,  it  is 
legally  admissible;  (4)  that  where  documents  are  used  the  original 
should  be  obtained  (except  when  a  copy  is  admissible)  and  that  the 
genuineness  should  be  verified;    (5)   that  any  witnesses  called  are 


96  MANUAL  FOR   COUETS-MARTIAL. 

legally  competent  to  give  evidence;  (6)  that  the  examination  of 
witnesses  is  fairly  and  properly  conducted.     (British  Manual.) 

Further  reference  will  always  be  had  to  the  paragraph  of  the 
manual  that  sets  out  the  gist  of  the  offenses  charged  (see  Chap. 
XVII),  and  this  will  be  read  to  the  court  in  each  case  by  the  judge 
advocate  immediately  after  the  accused  has  pleaded  to  the  charges 
and  specifications. 

It  will  be  appropriate  in  all  cases — and  in  an  important  or  compli- 
cated case  it  will  be  required  by  the  court — for  the  judge  advocate, 
before  proceeding  with  the  introduction  of  evidence,  to  make  a  brief 
statement  of  "  the  nature  of  the  issues  to  be  tried  and  what  he  expects 
to  prove"  (1  Thompson  on  Trials,  246)  to  sustain  them.  Counsel 
for  the  accused  may  also  make  an  opening  statement  as  to  his  de- 
fense, either  just  following  the  statement  of  the  judge  advocate 
or  just  after  the  judge  advocate  has  rested  his  case,  as  counsel  deems 
better,  but  the  latter  course  is  customary.  It  would  be  highly  repre- 
hensible for  either  judge  advocate  or  counsel  to  get  before  the  court 
in  such  opening  statement,  as  a  probable  means  of  influencing  its 
judgment,  matters  as  to  which  no  evidence  is  intended  to  be  offered 
or  as  to  which  it  is  known  that  the  e\ddence  to  be  offered  is  clearly 
inadmissible,  just  as  it  would  be  so  reprehensible  for  either  to  suggest 
for  the  same  purpose,  by  questions  propounded  to  a  witness,  matters 
known  not  to  exist  or  that  the  rules  of  evidence  clearly  make  inad- 
missible. 

198.  Rules  of  evidence  for  courts-martial. — Prior  to  the  act  of  August 
29,1916  (A.W.,38),  courts-martial  followed  in  general  the  rules  of 
evidence,  including  the  rules  as  to  competency  of  witnesses  to  testify, 
that  are  applied  by  Federal  courts  in  criminal  cases.  These  consisted 
of  the  rules  of  the  common  law  as  they  existed  in  the  several  States 
at  the  adoption  of  the  Federal  Constitution  in  1789,  as  modified 
from  time  to  time  by  subsequent  acts  of  Congress.  But  courts- 
martial  were,  however,  not  required  by  express  statute  to  follow  these 
rules,  and  have  always  been  allowed  to  pursue  a  more  liberal  course 
in  regard  to  the  admission  of  testimony  than  do,  habitually,  the 
civil  tribunals.  Their  purpose  was  to  do  justice;  and  if  the  effect 
of  a  technical  rule  was  found  to  be  to  exclude  material  facts  or 
otherwise  obstruct  a  full  investigation,  it  was  deemed  that  the  rule 
may  and  should  be  departed  from.  Proper  occasions,  however,  for 
such  departures  were  regarded  as  exceptional  and  unfrequent.  ( Win- 
throp, 473.)  It  was  believed  that  "courts-martial  had  much  better 
err  on  the  side  of  liberality  toward  a  prisoner  than,  by  endeavoring 
to  solve  nice  and  technical  refinements  of  the  laws  of  evidence,  assume 
the  risk  of  injuriously  denying  him  a  proper  latitude  for  defense." 
(G.  C.  M.  O.  32,  1872;  see  3  Greenleaf,  sees.  469,  476.)  And  now, 
by  the  provisions  of  the  act  of  August  29, 1916  (38  A.  W.) : 


EVIDENCE.  97 

The  President  may,  by  regulations  which  he  may  modify  from 
time  to  time,  prescribe  the  procedure,  including  modes  of  proof,  in 
cases  before  courts-martial,  courts  of  inquiry,  military  commissions, 
and  other  military  tribunals :  Provided^  That  nothing  contrary  to  or 
inconsistent  with  these  articles  shall  be  so  prescribed :  Provided  fur- 
ther^ That  all  rules  made  in  pursuance  of  this  article  shall  be  laid 
before  the  Congress  annually. 

The  modes  of  proof,  therefore,  including  the  rules  of  admissibility 
for  witnesses  and  other  evidence,  are  now  by  express  congressional 
enactment  placed  under  the  authority  of  Executive  regulation;  and 
the  rules  laid  down  in  this  Manual  have  the  force  of  such  regula- 
tion. They  therefore  form  the  only  binding  rules,  except  such  rules 
of  evidence  as  are  expressly  prescribed  (1)  in  the  Articles  of  War; 
(2)  in  the  Federal  Constitution;  and  (3)  in  such  Federal  statutes 
as  expressly  mention  courts-martial. 

199.  Rules,  where  found. — The  common-law  rules,  with  their  legis- 
lative modifications,  will  be  found  in  the  various  textbooks  on  the 
subject  of  evidence.  These  rules  have  been  the  subject  of  much  in- 
terpretation by  the  courts,  which  will  be  found  in  the  published  de- 
cisions of  such  courts.  While  resort  to  textbooks  and  decisions  will 
sometimes  be  necessary  in  the  trial  of  an  especially  difficult  case,  it 
is  the  purpose  of  this  chapter  to  state  the  rules  of  evidence  applicable 
to  trials  by  courts-martial  in  sufficient  fullness  to  cover  the  field  in 
practically  all  cases.  Where  the  rule  herein  laid  down  is  clear  it 
should  be  taken  as  law  (subject  to  the  discretionary  relaxation  noted 
in  par.  198) ,  unless  modified  by  Federal  statute  or  some  decision  of  the 
Federal  courts  made  since  the  date  of  the  publication  of  the  Manual. 

Where,  in  the  preparation  of  a  case,  the  judge  advocate  or  counsel 
finds  that  the  rules  laid  down  in  this  chapter  are  not  sufficiently 
specific  clearly  to  settle  a  specially  important  question  as  to  the  com- 
petency of  a  witness  to  testify  or  as  to  the  admissibility  of  evidence 
intended  to  be  introduced  or  the  exclusion  of  such  as  the  nature  of  the 
case  or  other  information  indicates  will  be  offered,  he  should  secure 
in  advance  of  the  trial  and  have  with  him  in  court  authorities  to 
sustain  his  contentions  for  such  admission  or  exclusion. 

But  it  should  be  kept  in  mind  that  the  use  of  such  authorities  is 
merely  to  inform  the  court  of  the  reason  of  a  rule  or  the  good  sense 
and  fairness  of  a  proposed  ruling,  and  not  to  control  the  decision  of 
the  court  with  binding  effect.  This  caution  rests  on  the  two  grounds 
of  principle :  First,  because  the  State  decisions  and  statutes,  and  the 
writers  of  treatises,  never  have  had  any  binding  effect  on  courts- 
martial,  the  Federal  statutes  and  decisions  being  the  only  ones  that 
are  entitled  to  such  effect;  and,  secondly,  because  since  the  Federal 
statute  of  August  29, 1916  (A.  W.,  38),  the  modes  of  proof  in  courts- 

91487°— 17 8 


98  MANUAL  FOR   COURTS- MARTIAL. 

martial  are  governed  by  regulations  issued  by  presidential  order,  as 
explained  in  par.  198. 

200.  Rules  of  evidence  to  be  applied  irrespective  of  rank. — The  rules  of 
evidence  should  be  applied  by  military  courts  irrespective  of  the 
rank  of  the  person  to  be  affected.  Thus  a  witness  for  the  prosecu- 
tion, whatever  be  his  rank  or  office,  may  always  be  asked  on  cross- 
examination  whether  he  has  not  expressed  animosity  toward  the 
accused,  as  well  as  whether  he  has  not  on  a  previous  occasion  made 
a  statement  contradictory  to  or  materially  different  from  that  em- 
braced in  his  testimony.  Such  questions  are  admissible  by  the  estab- 
lished law  of  evidence  and  imply  no  disrespect  to  the  witness,  nor 
can  the  witness  properly  decline  to  answer  them  on  the  ground  that 
it  is  disrespectful  to  him  thus  to  attempt  to  discredit  him.  (Digest, 
p.  529,  XI,  A,  3.) 

201.  Protection  of  witnesses. — It  is  the  duty  of  the  court  to  protect 
every  witness  from  irrelevant,  insulting,  or  improper  questions ;  from 
harsh  or  insulting  treatment ;  and  from  unnecessary  inquiry  into  his 
private  affairs.  The  court  must  forbid  any  question  which  appears 
to  be  intended  merely  to  insult  or  annoy  a  witness,  or  which,  though 
proper  in  itself,  appears  to  be  needlessly  offensive  in  form.  (Pro- 
posed codification,  N.  Y.  Rules.) 

202.  Evidence  must  be  material  and  relevant. — Evidence  to  be  admis- 
sible must  be  not  only  material  but  relevant  to  the  issues  in  the  case. 
Evidence  is  not  material  when  the  fact  which  it  aims  to  prove  is 
not  a  part  of  the  issues  in  the  case.  Evidence  is  not  relevant  when, 
though  the  fact  which  it  aims  to  prove  is  material,  yet  the  evidence 
itself  is  too  remote  or  far-fetched  to  have  any  probative  value  for 
that  purpose.  Where  evidence  is  apparently  irrelevant  it  may,  how- 
ever, be  admitted  provisionally  upon  a  statement  of  the  judge  advo- 
cate or  counsel  that  other  facts  to  be  proved  will  show  its  relevancy, 
but  the  court  should  afterwards  exclude  it,  if  its  relevancy  is  not 
shown.  Indirect  evidence  is  known  as  circumstantial  evidence,  and 
signifies  merely  any  and  all  evidence  which  is  not  testimonial;  i.  e., 
the  assertion  of  a  witness  or  other  person.  For  example,  on  a  charge 
of  larceny  of  a  wallet,  the  statement  of  a  witness  that  he  saw  the  ac- 
cused take  the  wallet  from  the  owner's  overcoat  is  testimonial  evi- 
dence; the  finding  of  the  wallet  hidden  in  the  blanket  belonging  to 
the  accused  is  circumstantial  evidence.  Obviously,  a  fact  constituting 
circumstantial  evidence  must  itself  usually  be  proved  in  its  turn  by 
testimonial  evidence ;  for  example,  the  finding  of  the  wallet  as  indi- 
cated above  would  be  evidenced  by  a  sergeant's  testimony  that  he 
searched  the  accused's  blanket  and  found  the  wallet. 

Testimonial  evidence  is  thus  classed  by  itself,  because  the  weight 
to  be  given  to  testimony  is  subject  to  a  group  of  considerations  which 
affect  all  human  assertions  alike. 


EVIDENCE.  99 

Section  II. 
CIRCUMSTANTIAL  EVIDENCE. 

203.  Circumstantial  evidence. — Circumstantial  evidence  is  not  resorted 
to  because  there  is  an  absence  of  direct  or  testimonial  evidence.  It  is 
introduced  even  when  there  is  direct  evidence;  nor  is  it  an  inferior 
substitute  for  direct  evidence.  Circumstantial  evidence  may  furnish 
a  safe  and  satisfactory  ground  for  belief,  while  on  the  other  hand 
direct  or  testimonial  evidence  may  leave  the  court  in  doubt.  The 
proper  effect  of  circumstantial  as  compared  with  direct  evidence  has 
been  stated  as  follows: 

When  circumstances  connect  themselves  closely  with  each  other, 
when  they  form  a  large  and  strong  body  so  as  to  carry  conviction  to 
the  minds  of  a  jury,  it  may  be  proof  of  a  more  satisfactory  sort  than 
that  which  is  direct.  In  some  lamentable  instances  it  has  been  known 
that  a  short  story  has  been  got  by  heart  by  two  or  three  witnesses; 
they  have  been  consistent  with  themselves,  they  have  been  consistent 
with  each  other,  swearing  positively  to  a  fact,  which  fact  has  turned 
out  afterwards  not  to  be  true.  It  is  almost  impossible  for  a  variety 
of  witnesses,  speaking  to  a  variety  of  circumstances,  so  to  concoct  a 
story  as  to  impose  upon  a  jury  by  a  fabrication  of  that  sort,  so  that 
where  it  is  cogent,  strong,  and  powerful,  where  the  witnesses  do  not 
contradict  each  other  or  do  not  contradict  themselves,  it  may  be 
evidence  more  satisfactory  than  even  direct  evidence,  and  there  are 
more  instances  than  one  where  that  has  been  the  case.  (Wigmore, 
26.)  In  a  case  depending  upon  circumstantial  evidence  the  court,  in 
order  to  convict,  must  find  the  circumstances  to  be  satisfactorily 
proved  as  facts^  and  must  also  find  that  those  facts  clearly  and  un- 
equivocally imply  the  guilt  of  the  accused  and  can  not  reasonably 
be  reconciled  with  any  hypothesis  of  his  innocence.     (Davis,  p.  265.) 

204.  Illustration  of  difference  between  g^ood  and  bad  circumstantial  evi- 
dence.— The  accused  is  charged  with  stealing  clothes  from  the  locker 
of  a  comrade.  The  following  circumstances  are  not  admissible  as 
circumstantial  evidence : 

(1)  The  accused  is  very  much  disliked  by  other  members  of  his 
company. 

(2)  A  number  of  thefts  from  comrades  have  taken  place  in  the 
company,  and  the  general  belief  in  the  company  is  that  he  was  con- 
nected with  them. 

(3)  He  was  tried  once  before  far  larceny  of  clothes  from  a  com- 
rade and  was  convicted. 

(4)  He  is  suspected  of  being  a  deserter  from  a  foreign  army. 

(5)  He  belongs  to  a  race  or  enlisted  in  a  locality  that  does  not 
entertain  very  strict  notions  of  right  and  wrong  as  to  the  manner  of 
acquiring  possession  of  property. 


100  MANUAL  FOR  COURTS-MARTIAL. 

But  the  following  series  of  circumstances  should  be  admitted  in 
evidence : 

(1)  The  clothes  were  taken  while  the  company  was  at  drill,  and 
there  was  no  one  known  to  have  been  in  the  room  where  the  locker 
was. 

(2)  The  accused  was  not  at  drill,  but  was  detailed  as  kitchen  police 
that  day. 

(3)  He  was  absent  from  his  duty  as  kitchen  police  a  short  while 
during  the  time  when  the  clothes  disappeared. 

(4)  One  of  the  articles  stolen  was  found  in  the  locker  of  the 
accused. 

(5)  The  accused  was  known  to  be  without  money  the  day  before 
the  larceny,  and  that  evening  left  the  post  with  a  bundle  under  his 
arm  and  was  seen  to  enter  a  certain  house  and  the  same  night  had 
money  in  his  possession. 

(6)  Upon  the  house  being  searched  next  day  most  of  the  missing 
clothes  were  found  there. 

(7)  The  person  found  in  the  house  identified  the  accused  as  the 
one  from  whom  he  had  purchased  the  missing  clothes. 

205.  Evidence  of  character  of  accused  and  of  his  services. — ^In  trials 
by  court-martial  the  good  character  of  the  accused,  as  evidenced  by 
his  reputation,  may  become  of  importance  in  four  classes  of  cases: 
First,  when  the  evidence  of  guilt  is  not  strong  evidence  of  the  good 
reputation  of  the  accused  will  strengthen  the  presumption  of  inno- 
cence; second,  when  the  punishment  is  discretionary  such  evidence 
may  be  introduced  with  a  view  to  inducing  the  court  to  impose  a 
milder  sentence  in  the  case  of  a  plea  of  guilty  or  a  conviction ;  third, 
when  the  punishment  is  mandatory  such  evidence  may  be  introduced 
with  a  view  to  inducing  the  court  to  recommend  clemency ;  fourth,  in 
any  case  such  evidence  may  be  introduced  with  a  view  to  inducing  the 
reviewing  authority  to  extend  clemency.  An  accused  may  also  intro- 
duce evidence  of  his  character  and  services.  In  any  such  case,  if 
the  accused  offers  evidence  as  to  character,  record,  or  services,  as 
shown  by  statement  of  service  or  otherwise,  the  prosecution  may  re- 
but such  evidence.  (See  1,  2,  4,  and  5,  par.  204,  p.  99,  for  illustrations 
of  what  may  not  be  used  in  rebuttal  to  evidence  bad  character.)  Evi- 
dence as  to  the  bad  character  of  an  accused,  offered  by  the  prosecution 
or  at  the  solicitation  of  the  court  prior  to  the  introduction  by  the 
accused  of  evidence  as  to  his  good  character,  is  inadmissible.  Not 
even  the  fact  that  before  the  introduction  of  such  evidence  the  ac- 
cused consented  to  its  introduction  will  make  it  any  the  less  irregular. 
If,  however,  the  accused  takes  the  witness  stand  his  character  for 
veracity  as  a  witness  may  be  attacked  as  in  the  case  of  any  other 
witness. 

206.  Motive,  etc. — Motive  or  lack  of  motive  as  impelling  the  accused 
toward  or  against  the  act  charged  or  that  class  of  acts  often  throws 


EVIDENQE.  101 

a  flood  of  light  upon  the  issue  as  to  guilt  or  innocence.  So  important 
has  it  been  deemed  for  the  ascertainment  of  truth  that  it  has  invoked 
exceptions  to  the  character  rule.  Thus  the  doing  of  another  crim- 
inal act,  not  a  part  of  the  issue,  while  not  admissible  as  evidence 
of  the  doing  of  the  criminal  act  charged,  or  of  the  bad  moral  char- 
acter of  the  accused,  is  admissible  when  offered  for  the  specific  pur- 
pose of  evidencing  design,  plan,  motive,  identity,  knowledge,  or 
other  relevant  facts  distinct  from  moral  character.  (Wigmore's  P. 
C.  64,  65.) 

Illustrations. —  (1)  In  a  trial  for  arson  of  a  barn,  the  defendant's 
attempt  on  two  former  occasions  to  burn  houses  in  other  parts  of  the 
town  is  not  admissible,  unless  for  the  purpose  of  evidencing  intent 
or  motive. 

(2)  On  a  charge  of  murder  by  poison,  the  defendant's  murders  of 
other  members  of  the  same  family  by  poison,  if  admissible  to  show 
motive  or  intent,  are  not  excluded  because  they  are  criminal  acts 
and  might  cause  undue  prejudice.     (Wigmore's  P.  C.  64,  65.) 

(3)  The  declarations,  threats — especially  his  other  similar  criminal 
acts — of  the  accused  are  admissible. 

(4)  When  the  accused  is  charged  with  having  knowingly  com- 
mitted an  offense  or  having  knowledge  of  the  essence  of  the  offense, 
prior  similar  acts  that  would  probably  have  led  to  some  knowledge 
or  warning  would  be  admissible. 

Section  III. 

TESTIMONIAL   EVIDENCE. 

207.  Testimonial  evidence. — Testimonial  evidence  is  the  statement  of 
some  person  offered  as  evidencing  the  fact  asserted  by  it.  For  ex- 
ample, a  statement  that  a  rifle  was  discharged  at  a  certain  hour  and 
place  is  testimonial  evidence  that  it  was  so  discharged. 

Such  statements  may  be  made  either  in  court  or  out  of  court.  If 
made  in  court  as  a  witness,  then  the  witness  must  be  "  competent." 
If  made  out  of  court,  then  even  if  he  is  competent,  the  statement  is 
not  admissible,  because  the  hearsay  rule  forbids. 

The  competency  of  the  witness  is  therefore  the  important  thing 
to  determine  before  admitting  testimonial  evidence. 

208.  Competency  rule  in  general. — The  modern  tendency,  as  evidenced 
to  a  great  extent  by  statutes  of  different  States,  and  to  a  limited 
extent  by  Federal  statutes,  is  to  recognize  practically  no  grounds  for 
incompetency,  but  to  admit  the  material  and  relevant  testimony  of  a 
witness  offered  by  either  side  and  leave  his  credit  to  be  estimated  ac- 
cording to  all  the  circumstances. 

Among  the  few  common-law  grounds  of  incompetency  (see  par. 
198)  now  remaining  in  some  States,  but  no  longer  to  be  recognized  in 


102  MAKUAL  FOR   COURTS- MARTIAL. 

courts-martial,  are  (1)  conviction  of  felony  and  of  misdemeanors 
involving  dishonesty  ("crimen  falsi"),  especially  perjury;  (2)  re- 
lationship, as  wife  or  husband  of  the  accused.  (See  pars.  211  and 
213.) 

209.  Competency  of  witness. — ^The  competency  of  a  witness  depends 
upon  several  elements,  which  may  be  divided  thus:  (1)  His  general 
moral  and  mental  capacity;  (2)  his  special  expertness  in  subjects  on 
which  expertness  is  required;  (3)  his  knowledge  of  the  specific  facts 
on  which  he  testifies. 

210.  General  capacity  of  witness. — The  general  capacity  of  an  adult 
witness  is  always  presumed;  i.  e.,  the  party  disputing  it  must  always 
prove  to  the  court  the  specific  ground  of  incapacity  or  else  the  witness 
should  be  allowed  to  testify.  The  admissibility  of  children  as  wit- 
nesses is  not  regulated  by  their  age,  but  by  their  apparent  sense  and 
understanding.  Children,  therefore,  of  any  age,  may  be  examined,  if 
capable  of  distinguishing  between  good  and  evil,  but  always  under 
oath. 

There  are  very  few  grounds  of  incapacity  to-day  recognized  by  the 
law. 

211.  Moral  incapacity  of  witness. — ^Moral  incapacity  was  recognized 
in  the  common-law  rule  that  rendered  incompetent  as  a  witness  any 
person  convicted  of  treason,  felony,  or  the  crimen  falsi. 

But  this  incapacity  has  been  abolished  in  almost  all  States,  except 
that  several  retain  it  with  a  restriction  to  convictions  for  perjury. 
In  courts-martial,  conviction  of  any  offense  does  not  disqualify  a 
witness.  But  it  may,  of  course,  be  shown  to  diminish  his  credit. 
(See  Credibility  of  witnesses.  Sec.  VI,  post.) 

.212.  Mental  incapacity  of  witness. — ^Mental  incapacity  is  a  disquali- 
fication, but, only  to  a  limited  extent,  as  follows:  Insanity  or  intoxi- 
cation may  disqualify,  but  only  to  the  extent  to  which  they  affect  the 
subject  of  the  testimony.  For  example,  a  religious  hallucination  as 
to  angels  saving  a  man  from  bullets  does  not  disqualify  the  person 
from  testifying  as  to  the  time  of  lighting  a  camp  fire  or  the  persons  on 
duty  at  a  certain  post.  Intoxication  would  disqualify  only  if  it  was 
so  complete  as  to  render  the  person  senseless  at  the  time  of  the  event 
to  be  testified  to. 

213.  Interest  or  bias. — Interest  or  bias  does  not  disqualify ;  i.  e.,  the 
fact  that  a  person  owes  a  party  money  or  has  a  property  interest  with 
or  against  a  party,  does  not  disqualify  him  from  testifying  for  or 
against  that  party.  A  person  who  is  a  relative  or  an  avowed  enemy 
of  the  accused  is  not  disqualified  from  testifying  for  or  against  the 
accused.  The  weight  of  such  testimony  when  admitted  is  a  different 
matter.     (See  Credibility  of  witnesses.  Sec.  VI,  post.) 

Marital  relationship  was  a  disqualification  at  common  law.  Except 
in  certain  cases,  husband  or  wife  could  not  testifv  either  for  or 


EVIDENCE.  103 

against  one  another.    This  rule  has  been  abolished  in  most  States. 
In  courts-martial  the  rule  is  as  follows : 

(1)  Wife  or  husband  of  an  accused  may  testify  on  behalf  of  the 
iiccused  without  restriction. 

(2)  Wife  or  husband  of  an  accused  may  not  be  called  to  testify 
against  the  accused  without  the  consent  of  both  accused  and  witness, 
unless  on  a  charge  of  an  offense  committed  by  the  accused  against  the 
witness. 

(3)  Wife  or  husband  of  any  person  may  not  testify  to  confidential 
commMnications  of  the  other,  unless  the  other  give  consent. 

The  last  two  rules  are  rules  of  privilege,  and  are  more  fully  stated 
under  "  Privilege." 

214.  Where  accused  is  witness. — It  was  provided  by  act  of  Congress 
of  March  16,  1878  (20  Stat.,  30),  that  in  trials  by  courts-martial  and 
courts  of  inquiry  as  well  as  by  United  States  courts  and  Territorial 
courts,  the  accused  "  &hall  at  his  own  request,  but  not  otherwise,  be  a 
competent  witness,"  and  that  "  his  failure  to  make  such  request  shall 
not  create  any  presumption  against  him."  An  accused  person  thus 
may,  at  his  option,  take  the  stand  as  a  witness,  but  in  so  doing  he 
occupies  no  exceptional  status  and  becomes  subject  to  cross-examina- 
tion like  any  other  witness.  The  same  rules  as  to  the  admissibility 
of  evidence,  privilege  of  the  witness,  impeaching  of  his  credit,  etc., 
will  apply  to  him  as  to  any  other  witness,  and  the  only  noticeable 
difference  between  his  examination  and  that  of  other  witnesses  will 
be  that  he  will  in  general,  naturally  and  properly,  be  exposed  to  a 
more  searching  cross-examination.  (Winthrop,  508.)  So  far  as  the 
latitude  of  the  cross-examination  is  discretionary  with  the  court,  a 
greater  latitude  may  properly  be  allowed  in  his  cross-examination 
than  in  that  of  other  witnesses  (id.,  545),  but,  like  them,  he  may  not 
be  cross-examined  beyond  the  field  of  his  direct  examination,  except 
to  test  his  credibility  as  a  witness.  Where  he  is  charged  with  a  series 
of  offenses  and,  taking  the  stand  in  his  own  defense,  testifies  as  to  a 
part  of  them  only,  he  can  not  be  cross-examined  as  to  the  others. 

215.  Procedure  where  accused  fails  to  testify  or  make  a  statement. — 
In  each  case  tried  by  a  general  court-martial  in  which  the  accused 
does  not  testify  or  make  any  statement  in  his  own  behalf,  it  shall  ap- 
pear on  record  that  the  president  of  the  court  explained  to  the  ac- 
cused that  he  may  testify  in  his  own  behalf  if  he  so  desire,  or  may 
make  an  unsworn  statement  to  the  court  in  denial,  in  explanation,  or 
in  extenuation  of  the  offense  with  which  he  stands  charged.  The 
explanation  by  the  president  and  the  reply  of  the  accused  thereto 
shall  appear  upon  the  record  of  trial.  The  same  rule  will  apply  in 
cases  tried  by  special  court-martial  when  the  evidence  heard  is  made 
of  record. 


104  MANUAL   FOR   COURTS-MARTIAL. 

216.  Effect  of  turning  state's  evidence. — The  fact  that  an  accomplice 
turns  state's  evidence  does  not  make  him  immune  from  trial,  unless 
immunity  has  been  promised  him  by  the  authority  competent  to 
order  his  trial.  But,  if  an  accomplice  goes  on  the  stand  and  makes 
a  full  and  frank  statement  of  the  circumstances  of  the  offense,  it  is 
customary  to  pardon  his  offense,  or  impose  upon  him  a  milder  pun- 
ishment than  upon  his  accomplices. 

217.  Competency  of  accused  when  testifying  against  an  accomplice. — 
The  rule  of  the  common  law  was  that  an  accused  person  was  in- 
competent to  testify  for  or  against  his  accomplices.  This  rule  is 
nullified  by  the  act  making  the  accused  a  competent  witness  when 
testifying  at  his  own  request.  The  rule  now  is  that  when  an  accused 
chooses  to  testify  he  may  do  so,  and  that  it  does  not  matter  whether 
his  testimony  is  for  or  against  himself  or  for  or  against  his  code- 
fendant.    (Wolf son  v,  U.  S.,  101  Fed.  Kep.,  436.) 

218.  Expert  capacity. — On  most  matters,  the  ordinary  experience 
of  any  adult  qualifies  him  to  observe  and  testif3^  Hence,  all  persons 
are  ordinarily  qualified  to  testify  on  ordinary  matter.  But,  when  the 
subject  is  one  upon  which  special  experience  is  required,  it  will  not  be 
presumed  that  a  witness  possesses  such  special  experience,  for  ordi- 
narily he  does  not.  Hence,  a  witness  called  upon  such  a  subject  must 
be  shown  to  possess  such  special  experience;  he  is  therefore  called 
an  "  expert "  on  that  subject.  A  person  may  be  an  expert  on  one 
subject,  but  not  on  another.  Hence,  whenever  such  a  topic  calls  for 
testimony,  the  witness'  special  experience  in  it  must  first  be  shown. 
Whether  a  piece  of  leather  has  been  recently  tanned ;  whether  a  stain 
is  human  blood  or  animal  blood,  are  instances  of  topics  which  might 
well  require  experts,  if  important  to  the  issue. 

In  applying  this  rule,  pedantry  would  be  out  of  place.  Experts 
on  all  subjects  are  seldom  within  reach  of  a  court-martial,  and  liber- 
ality of  application  is  a  necessity.  Good  sense  and  ordinary  caution 
will  determine  whether  an  expert  is  needful  for  accurate  discovery 
of  the  truth.  For  example,  an  expert  in  alcohol  would  hardly  be 
needed  to  testify  to  whether  the  contents  of  a  certain  bottle  were  suf- 
ficiently alcoholic  to  be  intoxicating,  but  in  a  homicide  case,  where 
the  cause  of  death  was  disputed,  obviously  a  medical  man's  testimony 
should  be  secured. 

219.  Insanity  of  accused. — ^Where  the  existence  of  mental  disease  or 
derangement  on  the  part  of  the  accused,  either  at  the  time  of  the 
trial  or  at  the  time  of  the  commission  of  the  alleged  wrongful  act, 
become-s  an  issue  in  the  trial  of  the  case,  the  court  will  stop  its  pro- 
ceedings and  immediately  report  the  fact  to  the  convening  au- 
thority. The  convening  authority  will  forthwith  order  a  board  of 
medical  officers  to  take  the  accused  under  their  personal  observation 
for  such  length  of  time  as  may  be  suflScient  to  determine  the  nature 


EVIDENCE.  105 

and  extent  of  the  disease  or  derangement,  if  any,  and  to  extend 
their  examination,  in  a  case  of  any  doubt,  to  written  inquiries  di- 
rected to  probation  officers,  physicians,  clergymen,  school  and  prison 
authorities,  mayors,  postmasters,  etc.,  for  the  purpose  of  fully  de- 
veloping, from  any  trustworthy  sources,  the  question  as  to  any  men- 
tal, moral,  or  physical  defects  of  childhood,  or  later,  that  may  throw 
light  upon  the  question  as  to  whether  the  accused  at  the  time  of 
the  wrongful  act  had  the  necessary  criminal  mind  to  commit  the 
wrongful  act  charged.  Where  the  information  from  any  source  in- 
dicates the  absence  of  insanity,  the  accused  will  be  entitled  to  cross- 
examine  the  party  giving  such  information.  Such  information  and 
its  source  will  be  brought  to  the  attention  of  the  judge  advocate, 
who  will  confer  with  the  counsel  for  the  accused  for  the  purpose  of 
securing  the  presence  of  the  informant  for  cross-examination  before 
the  court,  or  his  deposition  if  he  is  not  available  to  testify. 

The  medical  board  will  make  a  written  circumstantial  report  as 
to  the  character  of  their  observations,  attach  thereto  such  written 
evidence  as  may  have  been  considered,  and  state  their  opinion  as  a 
board,  or  individually  if  there  is  any  difference  of  opinion,  as  to 
whether  or  not  the  accused  had  at  the  time  of  their  report  sufficient 
mental  capacity  to  justify  his  being  brought  to  trial,  or  had  at  the 
time  of  the  wrongful  act  the  necessary  criminal  mind  to  commit 
the  wrongful  act  charged,  and  will  further  state  their  opinion,  if 
it  is  found  that  the  accused  did  not  have  the  necessary  criminal  mind 
to  commit  the  wrongful  act  charged,  as  to  whether  the  accused 
would  be  now  a  menace  to  the  public  safety. 

The  medical  report  as  a  whole  will  be  admissible  in  evidence, 
and  when  admitted  the  court  will  have  called  as  a  witness  for  the 
court  at  least  one  of  the  members  of  the  board  to  be  thoroughly 
examined,  as  if  on  cross-examination,  by  counsel  for  the  accused,  the 
judge  advocate  or  the  court,  as  to  any  feature  of  the  report,  and  on 
request  of  the  accused  the  remaining  members  of  the  board  shall 
be  called  for  cross-examination. 

If  insanity  is  indicated  to  either  judge  advocate  or  counsel  for 
accused  prior  to  the  assembling  of  the  court  it  would  be  appropriate 
for  the  judge  advocate,  at  request  of  counsel  for  accused  or  of  his 
own  motion,  to  report  such  indications  to  the  reviewing  authority 
with  the  idea  of  obviating  the  necessity  for  the  assembling  of  the 
court  until  a  medical  board  had  been  convened  and  reported  as 
outlined  above. 

In  any  case  where  the  convening  authority  accepts  the  finding  of 
the  board  on  the  question  as  to  necessary  criminal  mind  and  decides 
to  withdraw  the  case  from  consideration  of  the  court-martial  it 
would  accord  with  modem  ideas  of  justice,  if  any  doubt  whatsoever 
existed  as  to  the  accused  having  committed  the  wrongful  act  charged 


106  MANUAL  FOB  COURTS-MARTIAL. 

against  him,  to  grant,  upon  request  of  counsel  or  a  member  of  the 
accused's  family,  a  trial  upon  the  charge  with  a  view  to  relieving  him, 
though  insane,  of  the  stigma  attached  to  the  accusation.  In  such 
instance  the  case  should  be  proceeded  with,  and  if  the  court  deter- 
mines that  the  accused  committed  the  wrongful  act  charged  but  was 
insane  at  the  time  of  its  commission  or  at  the  time  of  trial  the  find- 
ings will  be  to  that  effect.  And  in  any  case  where  a  finding  by  the 
court  of  "  not  guilty  "  would  be  based  upon  lack  of  criminal  mind, 
the  findings  should  be  in  accordance  with  those  prescribed  by  the 
preceding  sentence. 

220.  Testimonial  knowledge. — ^A  prime  qualification  in  a  witness  is 
that  he  should  speak  only  of  what  he  has  observed  with  his  senses, 
or  had  an  opportunity  to  observe.  E.  g.,  a  witness  on  sentry  post  at 
night  might  testify  that  he  heard  three  shots  and  saw  two  per- 
sons running  in  the  distance,  but  should  stop  with  telling  what  he 
heard  and  saw.  To  proceed  further  and  state  that  the  shots  Idlled 
a  mule  and  that  the  accused  was  one  of  the  persons  running  may  in- 
volve beliefs  of  his  that  are  based  on  rumors  and  gossip  picked  up 
afterwards,  beliefs  for  which  he  has  no  status  as  a  witness.  An  im- 
portant feature  of  correct  trial  methods  is  to  summon  every  person 
who  saw  or  heard  anything  revelant,  but  to  require  every  such  per- 
son to  limit  his  testimony  to  what  he  himself  saw  or  heard.  In  this 
way  the  court  arrives  (if  the  testimony  be  credited)  at  the  basic  cir- 
cumstances on  which  the  proof  must  be  built  up. 

This  rule  also  has,  of  course,  its  liberal  side,  based  on  practical 
experience.  For  example,  if  the  issue  be  as  to  a  stolen  case  of  soap, 
and  the  quartermaster  has  an  invoice  showing  400  cases  received,  and 
he  is  asked  how  many  are  remaining  in  stock,  it  is  not  necessary  that 
he  should  personally  count  every  case;  it  might  suffice  if  he  ticked 
off  39  large  bales  of  10  cases,  each  intact,  and  then  found  a  bale  of 
9  with  1  missing. 

This  fundamental  principle  of  requiring  personal  knowledge  (or 
opportunity  to  observe)  leads  up  to  the  hearsay  rule,  applicable  to 
statements  made  by  persons  not  in  court.  The  hearsay  rule  signifies 
that  when  a  witness  testifies  not  to  what  he  himself  saw  or  heard 
but  to  what  he  heard  some  one  else  say,  his  testimony  on  that  point 
shall  be  rejected,  and  the  person  who  said  it  shall  be  produced  in 
the  court  to  testify,  the  object  being  to  get  at  the  first-hand  source  of 
knowledge.  Experience  shows  again.and  again  that  when  that  other 
person  is  produced  either  what  he  actually  said  was  something  very 
different  or  else  when  cross-examined  he  turns  out  to  have  only  a 
scanty  trustworthiness.  For  example,  if  the  sentry  in  the  above  in- 
stance testifies  that  he  did  not  identify  the  person  running,  but  after- 
wards in  barracks  Sergt.  S  said  that  it  was  X,  the  court  would  ex- 
clude what  Sertg.  S  said,  would  summon  S  to  testify  in  person,  and 


EVIDENCE.  107 

then  it  might  appear  that  all  Sergt.  S  knows  about  it  is  that  X  came 
into  barracks  half  an  hour  later  looking  as  if  he  were  out  of  breath, 
and  this  might  be  connected  up  with  an  errand  on  which  X  had  been 
sent,  by  testimony  of  his  captain.  The  hearsay  rule,  therefore,  is 
a  corollary  of  the  principle  that  a  witness  must  testify  from  what 
he  has  himself  seen  and  heard,  and  not  from  what  another  person 
has  told  him  or  written  to  him. 

221.  Hearsay  evidence. — The  hearsay  rule  is  subject  to  some  well- 
established  exceptions;  most  of  them  are  based  on  the  general  prin- 
ciple that  there  is  an  unavoidable  necessity  for  using  the  hearsay, 
because  the  person  is  deceased  or  for  some  other  reason  can  not  be 
secured  as  a  witness.  These  exceptions  are  now  settled,  however,  into 
fixed  rules,  irrespective  of  the  above  principle. 

Nevertheless,  in  courts-martial  the  liberal  principle,  now  adopted 
in  one  or  two  States,  may  well  be  followed  in  extreme  cases,  viz, 
wherever  the  person,  whose  statement  is  desired  to  be  offered  (whether 
written  or  oral),  is  deceased  at  the  time  of  the  trial,  and  was  a  per- 
son having  personal  knowledge  of  the  facts,  his  statement  may  be 
admitted,  in  the  discretion  of  the  court.  The  following  are  familiar 
instances  of  hearsay  in  court-martial  cases : 

(1)  A  soldier  is  being  tried  for  desertion.  Pvt.  A  is  able  to  testify 
that  Pvt.  B  told  Pvt.  A  that  the  accused  told  Pvt.  B  that  he  (the 
accused)  intended  to  desert  at  the  first  opportunity.  Such  testimony 
from  Pvt.  A  would  be  hearsay  and  would  be  inadmissible. 

(2)  A  soldier  is  being  tried  for  larceny  of  clothes  from  a  locker. 
Pvt.  A  is  able  to  testify  that  Pvt.  B  told  Pvt.  A  that  he  (Pvt.  B) 
about  the  time  the  clothes  were  stolen  saw  the  accused  leave  the  quar- 
ters with  a  bundle  resembling  clothes.  Such  testimony  from  Pvt.  A 
would  be  hearsay  and  would  be  inadmissible. 

(3)  A  soldier  is  being  tried  for  selling  clothing.  Policeman  A  is 
able  to  testify  that,  while  on  duty  as  policeman,  he  saw  the  accused 
with  a  bundle  under  his  arm  go  into  a  shop,  that  he  (the  policeman) 
entered  the  shop  and  the  accused  ran  away  and  the  policeman  was 
unable  to  catch  him.  The  policeman  the  next  day  asked  the  pro- 
prietor of  the  shop  what  the  accused  was  doing  there,  and  the  pro- 
prietor replied  that  the  accused  sold  him  some  clothes  issued  by  the 
Government  and  that  he  paid  the  accused  $2.50  for  them.  The  testi- 
mony of  the  policeman  as  to  the  reply  of  the  proprietor  would  be 
hearsay  and  would  be  inadmissible.  The  fact  that  the  policeman  was 
acting  in  the  line  of  his  duty  at  the  time  the  proprietor  made  the 
statement  would  not  render  the  evidence  admissible. 

In  the  foregoing  instances  the  fact  that  the  accused  said  he  intended 
to  desert,  that  the  accused  left  the  quarters  with  a  bundle,  and  that 
the  accused  sold  the  proprietor  the  clothes,  constitute  most  important 
evidence  and  can  be  proved  in  the  first  two  instances  by  Pvt.  B,  and 


108  MANUAL   FOR   COUBTS-MAETIAL. 

in  the  third  instance  by  the  proprietor,  but  they  can  not  be  proved  by 
hearsay  evidence. 

If  evidence  is  hearsay  it  does  not  become  admissible  because  it  was 
made  to  an  officer  in  the  course  of  an  official  investigation.  For  in- 
stance, in  illustration  (1),  if  Pvt.  B  had  made  his  statement  to  Capt. 
C  in  the  course  of  an  official  investigation  by  Capt.  C,  the  statement 
would  still  be  hearsay  and  inadmissible. 

Official  statements  and  opinions  as  to  either  guilt  or  innocence 
expressed  by  an  officer,  as,  for  instance,  a  company,  regimental,  or 
department  conmaander,  or  by  a  staff  officer,  in  an  indorsement,  is 
not  admissible  in  evidence  by  reason  of  its  official  character  or  the 
rank  or  position  of  the  officer  making  it,  as  it  would  be  hearsay.  Nor 
is  such  a  statement  or  opinion  evidence  because  it  is  among  papers 
referred  to  the  trial  judge  advocate  with  the  charges.  It  would  be 
irregular  to  permit  such  statements  or  opinions  to  come  to  the  atten- 
tion of  the  court.  If  they  do  become  known  to  the  court  they  should, 
of  course,  not  be  considered  in  arriving  at  a  finding  or  sentence. 

222.  Dying  declarations. — On  trials  for  murder  and  manslaughter, 
the  law  recognizes  an  exception  to  the  rule  rejecting  hearsay  by 
allowing  the  dying  declarations  of  the  victim  of  the  crime,  in  regard 
to  the  circumstances  which  produced  his  condition,  and  especially 
as  to  the  person  by  whom  the  violence  was  committed,  to  be  detailed 
in  evidence  by  one  who  heard  them.  The  reason  for  admitting  such 
declarations  where  the  victim  believes  death  is  impending  is  that 
his  belief  is  equal  to  the  sanctity  of  an  oath  in  causing  him  to  tell 
the  truth.  It  is  no  objection  to  their  admissibility  that  they  were 
brought  out  in  answer  to  leading  questions  or  upon  urgent  solicita- 
tions addressed  to  him  by  any  person  or  persons;  and  if,  instead  of 
speaking,  he  answered  the  questions  by  intelligible  signs  these  signs 
may  equally  be  testified  to.  Dying  declarations  are  admissible  as 
well  in  favor  of  the  accused  as  against  him.  It  is  to  be  remarked 
that  evidence  of  dying  declarations  made  as  such  usually  are  under 
circumstances  of  mental  and  physical  depreciation  and  without  being 
subjected  to  the  ordinary  legal  tests  are  generally  to  be  received  with 
great  caution.     (Winthrop,  p.  493.) 

223.  Res  gestae. — Another  exception  to  the  hearsay  rule  consists  of 
the  inculpatory  or  exculpatory  declarations  or  statements  that  con- 
stitute part  of  the  res  gestae.  By  the  res  gestae  is  meant  the  cir- 
cumstances and  occurrences  substantially  contemporaneous  with  the 
facts  at  issue  that  explain  and  elucidate  the  character  and  quality 
of  such  facts.  Such  are  threats  or  declarations  of  the  accused  in 
connection  with  his  commission  of  the  crime  that  indicate  his  intent 
or  knowledge;  declarations  or  exclamations  of  a  party  injured  that 
go  to  indicate  the  nature  of  the  violence  and  the  parties  responsible ; 
language  of  accomplices;  cries  of  bystanders;  facts,  circumstances, 


EVIDENCE.  109 

and  declarations  showing  premeditation  and  preparation  for  the 
crime.  All  such  may  be  established  by  the  testimony  of  persons  who 
heard  the  utterances,  etc.  All  such  declarations  and  statements  must 
be  made  so  near  in  time  to  the  principal  transaction  as  to  preclude 
the  idea  of  deliberate  design  or  afterthought  in  making  them,  but 
it  is  not  essential  that  they  should  have  been  made  in  the  presence 
or  hearing  of  the  accused.  Nor  does  it  matter  that  the  party  mak- 
ing them  would  be  incompetent  to  testify  in  the  case.  For  instance, 
the  statements  of  a  wife  under  such  circumstances  would  be  admissible 
against  her  husband.  Where  the  crime  committed  is  the  culmination 
of  a  series  of  acts,  such  as  in  riots,  etc.,  the  res  gestae  rule  applies 
to  all  acts  and  declarations  of  the  rioters  and  of  bystanders  that 
would  tend  to  indicate  purpose,  motive,  etc. 

For  instance,  the  exclamation  of  a  bystander  who  was  witnessing 
the  building  of  barricades  in  a  street:  "My  God,  they  are  getting 
ready  to  resist  the  police !  "  would  be  admissible  as  tending  to  indicate 
the  purpose  of  that  transaction  where  the  killing  of  certain  of  the 
police  resulted  from  a  fire  directed  from  such  barricades,  though  the 
killing  did  not  occur  until  the  next  day.  The  res  gestae  is  considered 
as  an  act  connected  with  or  an  incident  of  a  main  transaction,  and 
not  as  testimony,  and,  as  soon  as  it  assumes  the  character  of  a  narra- 
tion, rather  than  a  spontaneous  exclamation  that  there  is  no  probable 
ground  for  belief  was  inspired  by  a  desire  to  influence  the  case,  it  is 
inadmissible  as  falling  under  the  hearsay  rule.  The  application  of 
the  rule  of  res  gestae  is  not  limited  strictly  to  circumstances  and 
occurrences  contemporaneous  with  the  principal  facts  at  issue  nor 
with  the  transactions  leading  up  to  the  principal  facts  but  would 
extend  to  a  case  of  identification,  as  when,  for  instance,  a  party  who 
has  seen  the  commission  of  a  crime  and  afterwards  sees  the  accused 
and  spontaneously  identifies  him  by  some  such  exclamation  as 
"  There's  the  man  that  did  the  killing,"  although  such  statement  as  to 
identification  may  have  been  made  days  after  the  principal  act  was 
committed.  The  following  examples  illustrate  what  constitute  the 
res  gestae: 

Where  the  accused  is  charged  with  sleeping  on  post,  and  it  appears 
that  the  officer  of  the  day  or  corporal  of  the  guard,  in  searching  for 
the  accused,  found  him  sitting  down  with  his  rifle  across  his  knees 
and  his  chin  on  his  chest,  what  they  did  and  said  to  each  other  and 
to  the  accused,  and  the  accused  to  them,  in  what  led  up  to  and  imme- 
diately followed  their  efforts  to  ascertain  whether  or  not  he  was 
asleep,  all  constitute  parts  of  the  res  gestae. 

Where  a  soldier  is  charged  with  murder,  manslaughter,  or  assault, 
and  the  party  against  whom  the  violence  is  offered  is  another  soldier, 
and  the  wife  of  the  former,  while  walking  with  the  latter,  exclaims, 
"  Run !  here  comes  my  jealous  husband,  and  he  will  kill  you !  "  her 


110  MANUAL  FOR   COURTS- MARTIAL. 

exclamations  would  be  admitted  as  part  of  the  res  gestae.  If  the  sol- 
dier had  then  fled  to  his  house  pursued  by  her  husband,  and  she  had 
followed  to  deter  him  from  injuring  the  other  party  .and  later  had 
run  from  the  house  shouting,  "  My  husband  is  killing  Jones !  "  or 
"  has  just  killed  Jones !  "  her  exclamations  would  be  admissible  as 
constituting  part  of  the  res  gestae.  If  a  partjr  in  the  next  room  had 
heard  a  shot  and  then  a  voice  that  he  recognized  as  Pvt.  Jones's  say, 
"  You  shot  me  for  revenge  and  nothing  else,"  the  declaration  would 
be  considered  as  a  part  of  the  res  gestae. 

A  liberal  use  of  this  exception  may  well  be  made. 

224.  Evidence  of  conspirators  and  accomplices. — In  cases  where  several 
persons  join  with  a  common  design  in  committing  an  offense  all  acts 
and  stgitements  of  each  of  them  made  in  furtherance  of  the  offense 
are  admissible  against  each  of  the  others.  Only  where  the  state- 
n^eiits  of  such  conspirator  fall  within  the  rule  laid  down  for  admis- 
sion of  evidence  as  a  part  of  the  res  gestae  could  such  statements  be 
admissible  for  the  defense.  The  declaration  of  a  conspirator,  how- 
ever, made  after  the  common  design  is  accomplished  or  abandoned, 
is  not  admissible  against  the  others.  Such  accomplishment  or  aban- 
donment, however,  should  be  considered  as  extending  to  any  acts 
and  statements  in  furtherance  of  an  escape.  It  is  immaterial  whether 
such  acts  or  statements  were  made  in  the  presence  or  hearing  of  the 
other  parties.  They  are  binding  upon  all  parties  if  they  are  in  fur- 
therance of  the  common  design.  Foundation  must  first  be  laid  by 
either  direct  or  circumstantial  evidence  sufficient  to  establish  prima 
facie  the  fact  of  conspiracy  between  the  parties,  unless  the  judge 
advocate  states  that  the  conspiracy  will  later  appear  from  evidence 
to  be  adduced.  While  in  Federal  courts  and  courts-martial  corrobo- 
ration of  the  testimony  of  a  coconspirator,  or  accomplice,  need  not  be 
required,  yet  from  the  character  of  the  associations  formed  the 
uncorroborated  testimony  of  a  coconspirator,  or  accomplice,  should 
be  received  with  great  caution. 

225.  Confessions. — Another  exception  to  the  rule  excluding  hearsay 
evidence  is  the  rule  that  admits  testimony  as  to  confessions  of  guilt 
made  by  the  accused.  The  most  common  form  of  confession  is  that 
contained  in  the  plea  of  guilty  made  by  the  accused  in  open  court 
in  answer  to  a  charge.  This  is  not  the  kind  of  confession  referred  to 
as  constituting  an  exception  to  the  hearsay  rule.  The  confessions 
referred  to  are  those  made  out  of  court,  and  to  be  admissible  must  be 
offered  in  their  entirety  and  not  merely  the  parts  disadvantageous  to 
the  accused.  Before  a  confession  of  the  accused  not  made  in  open 
court  can  be  testified  to  the  following  foundations  must  be  laid  by 
the  judge  advocate: 

(a)  There  must  be  corroborating  evidence,  either  direct  or  circum- 
stantial, outside  of  the  confession  itself,  that  the  crime  charged  has 


EVIDENCE.  Ill 

been  committed.  This  is  what  is  technically  known  as  the  rule 
requiring  proof  of  the  corpus  delicti;  that  is,  some  proof  of  the  fact 
that  the  crime  charged  has  probably  been  committed  by  some  one,  so 
that  there  will  be  some  corroboration  of  the  confession.  It  is  not 
requisite  that  this  outside  evidence  constituting  proof  of  the  corpus 
delicti  shall  be  sufficient  to  convince  the  court  beyond  a  reasonable 
doubt  of  the  guilt  of  the  accused,  nor  need  it  cover  every  element 
contained  in  the  charge.  For  instance,  where  desertion  is  charged 
proof  of  absence  without  leave  would  be  considered  as  proving  the 
corpus  delicti;  where  the  charge  is  that  a  sentinel  had  left  his  post 
before  being  regularly  relieved  it  would  be  sufficient  to  prove  that 
he  was  not  on  his  post  during  his  period  of  duty ;  where  a  homicide 
is  charged  the  proof  of  the  death  of  the  person  charged  to  have  been 
killed  amounts  to  proof  of  the  corpus  delicti;  and  in  cases  of  lar- 
ceny and  selling  clothing  the  fact  that  the  property  alleged  to  have 
been  stolen  or  sold  was  missing  is  sufficient  proof. 

{h)  It  must  be  affirmatively  shown  that  the  confession  was  entirely 
voluntary  on  the  part  of  the  accused.  A  confession  is,  in  a  legal 
sense,  "  voluntary  "  when  it  is  not  induced  or  materially  influenced 
by  hope  of  release  or  other  benefit  or  fear  of  punishment  or  injury 
inspired  by  one  in  authority,  or,  more  specifically,  where  it  is  not 
induced  or  influenced  by  words  or  acts,  such  as  promises,  assurances, 
threats,  harsh  treatment,  or  the  like,  on  the  part  of  an  official  or 
other  person  competent  to  effectuate  what  is  promised,  threatened, 
etc.,  or  at  least  believed  to  be  thus  competent  by  the  party  confessing. 
And  the  reason  of  the  rule  is  that  where  the  confession  is  not  thus 
voluntary  there  is  always  ground  to  believe  that  it  may  not  be  true. 
(Winthrop,  p.  496.)  In  military  cases,  in  view  of  the  authority 
and  influence  of  superior  rank,  confessions  made  by  inferiors,  es- 
pecially when  ignorant  or  inexperienced  and  held  in  confinement 
or  close  arrest,  should  be  regarded  as  incompetent  unless  very 
clearly  shown  not  to  have  been  unduly  influenced.  Statements,  by 
way  of  confession,  made  by  an  inferior  under  charges  to  a  com- 
manding officer,  judge  advocate,  or  other  superior  whom  the  accused 
could  reasonably  believe  capable  of  making  good  his  words  upon 
even  a  slight  assurance  of  relief  or  benefit  by  such  superior  should 
not  in  general  be  admitted.  Thus  in  a  case  where  a  confession  was 
made  to  his  captain  by  a  soldier  upon  being  told  by  the  former  that 
"  matters  would  be  easier  for  him,"  or  "  as  easy  as  possible,"  if  he 
confessed,  such  confession  was  held  not  to  have  been  voluntary  and 
therefore  improperly  admitted.  And  it  has  been  similarly  ruled  in 
cases  of  confessions  made  by  soldiers  upon  assurances  being  hfeld 
out  or  intimidation  resorted  to  hy  noncommissioned  officers.  (Win- 
throp, p.  498.)  But  confessions  made  by  private  soldiers  to 
officers   or   noncommissioned   officers,   though   not   shown   to   have 


112  MANUAL  FOR   COURTS- MARTIAL. 

been  made  under  the  influence  of  promises  or  threats,  etc.,  should, 
yet,  in  view  of  the  military  relations  of  the  parties,  be  received  with 
caution.  Of  course,  the  above  principles  apply  to  a  written  confes- 
sion as  well  as  to  a  verbal  one.  In  some  cases  before  courts-martial 
it  appears  that  the  accused  has  signed  a  pap^r  confessing  his  guilt, 
stating  in  the  paper  that  he  confesses  freely  without  hope  of  reward 
or  fear  of  punishment,  etc.  Such  statements  are  not  conclusive  that 
the  confession  was  voluntary.  Evidence  may  be  introduced.  If  the 
evidence  shows  the  statement  was  not  in  fact  voluntary,  it  should 
not  be  considered  by  the  court. 

Considering,  however,  the  relation  that  exists  between  officers  and 
enlisted  men  and  between  an  investigating  officer  and  a  person  whose 
conduct  is  being  investigated,  and  the  obligation  devolving  upon  an 
investigating  officer  to  warn  the  person  investigated  that  he  need 
not  answer  any  question  that  might  tend  to  incriminate  him,  con- 
fessions made  by  soldiers  to  officers  or  by  persons  under  investigation 
to  investigating  officers  should  not  be  received  unless  it  is  shown  that 
the  accused  was  warned  that  his  confession  might  be  used  against 
him  or  it  is  shown  clearly  in  some  other  manner  that  the  confession 
was  entirely  voluntary. 

In  view  of  the  peculiar  conditions  of  mind  and  body  under  which 
accused  persons  are  often  placed  when  making  confessions,  of  the 
liability  to  mistake  on  the  part  of  the  witnesses  who  repeat  them  when 
oral,  and  of  the  tendency  of  these  latter  to  exaggerate  through  a  zeal 
for  conviction,  evidence  of  confessions,  unless  corroborated  by  other 
reliable  evidence,  is  in  general  to  be  received  with  caution.  Where, 
however,  a  confession  is  explicit  and  deliberate  as  well  as  voluntary, 
and,  if  oral,  is  proved  by  a  witness  or  witnesses  by  whom  it  has  not 
been  misunderstood  and  is  not  misrepresented,  it  is  indeed  one  of 
the  strongest  forms  of  proof  known  to  the  law  (Winthrop,  p.  499). 

Courts  should  bear  in  mind  that  mere  silence  on  the  part  of  an 
accused  when  questioned  as  to  his  supposed  offense  is  not  to  be 
treated  as  a  confession. 

Although  the  confession,  because  not  voluntary,  is  inadmissible, 
yet  any  information  given  in  the  confession  that  leads  to  the  dis- 
covery of  relevant  facts  will  not  render  testimony  of  such  facts 
inadmissible,  and  it  may  be  further  shown,  by  way  of  corroboration 
of  such  facts,  that  the  discovery  was  either  wholly  or  partially  due 
to  the  information  thus  obtained. 

226.  Admissions  against  interest. — Somewhat  connected  with  the  sub- 
ject of  confessions  is  that  of  declarations  or  admissions  against  one's 
own  interest.  This  constitutes  another  exception  to  the  rule  exclud- 
ing hearsay.  In  many  instances  the  accused,  after  the  commission 
of  an  offense,  makes  statements  which  fall  short  of  a  full  confession 
of  guilt  but  do  constitute  important  admissions  as  to  his  connection 


EVIDENCE.  113 

with  the  offense.  The  rule  is  that  such  admissions  if  against  his 
own  interest  may  be  admitted  in  evidence.  For  instance,  in  a  case  of 
homicide  in  a  dance  hall,  if  the  accused  when  arrested  made  the 
statement  that  he  was  in  the  hall  when  the  homicide  took  place,  such 
a  statement  is  admissible  as  against  his  interest. 

Admissions  against  penal  interests  of  parties  other  than  the  ac- 
cused or  those  connected  with  him  in  the  commission  of  the  crime 
charged,  are  not  admissible  as  evidence.  Such  persons  ought  to  be 
summoned  as  witnesses  and  examined  as  to  such  supposed  admis- 
sions or  confessions. 

227.  Privileged  communications. — A  privileged  communication  is  one 
that  relates  to  matters  occurring  during  a  confidential  relation,  which 
it  is  the  public  policy  to  protect.  A  witness  can  decline  to  answer  a 
question  touching  such  a  communication.  The  confidential  relations 
that  were  protected  at  common  law  and  which  are  met  with  in  court- 
martial  practice  are  the  following: 

State  secrets. — Communications  made  by  informants  to  public  offi- 
cers engaged  in  the  discovery  of  crime  are  privileged.  The  delib- 
erations, of  courts  and  of  grand  and  petit  juries  are  privileged,  but 
the  results  of  their  deliberations  are  not  privileged.  Diplomatic  cor- 
respondence, and,  in  general,  all  oral  or  written  official  communi- 
cations which,  in  the  opinion  of  the  President,  would  be  detrimental 
to  the  public  interests,  and  official  communications  between  the  heads 
of  the  departments  of  the  Government  and  their  subordinate  officers 
are  privileged.  Were  it  otherwise  it  would  be  impossible  for  such 
superiors  to  administer  effectually  the  public  affairs  with  which  they 
are  intrusted. 

Husband  and  wife. — Communications  between  husband  and  wife 
are  privileged. 

Attorney  and  client. — The  testimony  of  the  attorney,  his  clerk, 
interpreter,  stenographer,  agent,  or  other  employee  as  to  communi- 
cations between  the  client  and  the  attorney,  made  while  the  relation 
of  attorney  and  client  existed  and  in  connection  with  the  matter  for 
which  the  attorney  was  engaged,  will  not  be  received  by  a  court,  un- 
less such  conmaunications  clearly  contemplate  the  commission  of  a 
crime;  i.  e.,  perjury,  subornation  of  perjury,  etc.  Of  course,  com- 
munications prior  to  or  subsequent  to  the  relation  are  not  privileged. 
The  client,  but  not  the  attorney,  may  waive  this  privilege. 

Police  secrets. — The  privilege  that  extends  to  communications  made 
by  informants  to  public  officers  engaged  in  the  discovery  of  crime 
should  be  given  a  common-sense  interpretation.  The  public  interests 
would  ordinarily  be  prejudiced  by  reason  of  the  disclosure  of  such 
communications  in  a  case — and  this  might  very  reasonably  occur 
where,  for  instance,  the  admission  of  such  communications  would 

91487°— 17 9 


114  MANUAL  FOR  COURTS-MARTIAL. 

disclose  the  identity  of ^  parties  employed  for  the  detection  of  crimi- 
nals or  would  endanger  the  party  who  made  such  communication,  or 
would  injuriously  affect  the  chances  of  securing  such  agents  for  the 
detection  of  crime  in  the  future.  But  the  material  interests  of  the 
accused  to  vindicate  his  innocence  should  not  be  allowed  to  suffer 
by  reason  of  the  exclusion  of  such  evidence. 

The  purpose  of  the  privilege,  extended  to  communications  between 
husband  and  wife  and  attorney  and  client^  which  grows  out  of  a 
recognition  of  the  public  advantage  that  accrues  from  encouraging 
free  communication  in  such  circumstances,  is  not  disregarded  by 
allowing  outside  parties  who  overhear  such  privileged  communica- 
tions to  testify  to  what  they  have  overheard.  It  would  not  be  per- 
mitted, however,  for  one  of  the  minor  children  of  the  parents,  who 
might  reasonably  be  presumed  by  the  parents  not  to  understand  what 
they  were  talking  about,  to  testify  to  communications  overheard  by 
such  child. 

228.  Privilege  of  wife  and  husband  to  testify. — At  common  law  the 
early  rule  was  that  neither  husband  nor  wife  is  competent  as  a  wit- 
ness against  the  other,  but  later  admitted  an  exception  in  a  case  of 
bodily  injury  inflicted  by  one  of  them  upon  the  other. 

Certain  departures  have  been  made  from  the  common-law  rule  by 
Federal  statutes  and  decisions  of  the  courts  which,  giving  considera- 
tion to  the  reasons — ^i.  e.,  the  necessities  of  justice  that  demand  relax- 
ation of  the  rule  in  cases  of  bodily  injury — ^have  extended  the  field  of 
instances  to  which  the  necessities  of  justice  must  necessarily  apply. 

In  any  prosecution  for  bigamy,  polygamy,  or  unlawful  cohabita- 
tion under  any  statute  of  the  United  States,  the  lawful  husband  or 
wife  of  the  accused  shall  be  a  competent  witness,  and  may  be  called, 
but  shall  not  be  compelled  to  testify  in  such  proceedings,  and  shall 
not  be  compelled  to  testify  *  *  *  without  the  consent  of  the 
husband  or  wife,  as  the  case  may  be.  (Act  of  Mar:  3,  1887,  24  Stat., 
635.)  A  married  woman  is  excluded  as  a  witness  from  motives  of 
public  policy.     (Lucas  v.  Brooks,  18  Wall.,  436,  453.) 

Whenever,  therefore,  the  policy  or  necessity  of  admitting  her  as  a 
witness  against  her  husband  is  sufficiently  strong  to  overbalance  the 
principle  of  public  policy,  upon  which  the  general  rule  of  exclusion  is 
based,  she  ought  to  be  received  as  a  witness.  (People  v.  Mercein,  8 
Paige  (N.  Y.),  47.)  And  so  the  wife  should  be  permitted  to  testify 
against  the  husband  whenever  she  is  the  particular  individual  di- 
rectly injured  by  the  crime  committed  by  her  husband  and  the  facts 
are  peculiarly  within  her  knowledge  and  impossible  or  difficult  of 
proof  by  any  witness  other  than  the  wife.  (State  (Mo.)  v.  Bean,  78 
S.  W.,  640.)  It  would  therefore  be  appropriate  in  such  cases  against 
a  husband  as  bodily  injury  of  any  character  inflicted  by  him  upon 
her,  bigamy,  polygamy,  or  unlawful  cohabitation,  abandonment  of 


EVIDENCE.  115 

wife  and  children,  or  failure  to  support  them,  for  the  wife  to  be  per- 
mitted to  testify  against  her  husband. 

The  principle  enunciated  above  as  to  permission  of  the  wife  to 
testify  should  be  extended  to  a  husband  in  analogous  cases. 

229.  Telegrams  not  privileged. — Neither  private  telegrams  nor  the 
information  regarding  them  that  comes  to  the  knowledge  of  telegraph 
operators,  either  military  or  civil,  are  privileged.  Telegraph  opera- 
tors, both  military  and  civil,  may  be  subpoenaed  to  testify  before  a 
court-martial  as  to  private  telegrams,  and  private  telegrams  may 
be  brought  before  a  court-martial  by  the  usual  process. 

230.  Confidential  papers. — The  reports  of  special  inspections  by  the 
Inspector  General's  Department  are  confidential  documents  and  the 
testimony  taken  is  considered  a  part  and  parcel  of  such  reports. 
There  is  no  law  or  regulation  which  requires  copies  of  the  evidence 
contained  in  these  confidential  reports  to  be  furnished  to  officers 
whose  conduct  has  been  under  investigation.  So  also  the  reports  of 
the  Judge  Advocate  General  to  the  Secretary  of  War  have  always 
been  regarded  as  confidential  communications  and  it  has  not  been  the 
practice  to  furnish  copies  of  them  to  parties  outside  the  department 
in  the  absence  of  special  authority  from  the  Secretary  of  War.  If 
the  prosecution  has  had  access  to  any  such  document,  fairness  re- 
quires that  the  accused  should  have  equal  access  to  it. 

231.  Communications  from  officers  or  soldiers  to  medical  officers  not 
privileged. — It  is  the  duty  of  medical  officers  of  the  Army  to  attend 
officers  and  soldiers  when  sick,  to  make  the  annual  physical  examina- 
tion of  officers,  and  examine  recruits  for  enlistment,  and  they  may 
be  specially  directed  to  observe  an  officer  or  soldier  or  specially 
to  examine  or  attend  them;  such  observations,  examination,  or  at- 
tendance would  be  official  and  the  information  acquired  would  be 
official.  While  the  ethics  of  the  medical  profession  forbid  them  to 
divulge  to  unauthorized  persons  the  information  thus  obtained  and 
the  statements  thus  made  to  them,  such  information  and  statements 
do  not  possess  the  character  of  privileged  communications.  If  the 
medical  officer,  when  called  as  a  witness  before  a  court-martial,  refuses 
to  testify  to  such  matters,  he  is  subject  to  charges  under  A.  W.  96. 

232.  Communications  between  civilian  physicians  and  patients  not  priv- 
ileged.— Neither  are  the  communications  between  civilian  physician 
and  patient  privileged,  and  the  refusal  of  a  physician  to  testify  to 
such  communications  would  subject  him  to  the  prosecution  provided 
by  A.  W.  23. 

233.  Compulsory  self-crimination  prohibited. — The  fifth  amendment 
to  the  Constitution  of  the  United  States  provides  that  in  a  criminal 
case  the  person  shall  not  be  compelled  "to  be  a  witness  against 
himself."  The  principle  embodied  in  this  provision  applies  to  trials 
by  courts-martial  and  is  not  limited  to  the  person  on  trial,  but  ex- 


116  MANUAL   FOR   COURTS-MAETIAL, 

tends  to  any  person  who  may  be  called  as  a  witness.  A.  W.  24,  in 
furtherance  of  this  principle,  provides  that  no  witness  before  a  mili- 
tary court,  commission,  court  of  inquiry,  or  board,  or  before  any 
officer,  military  or  civil,  designated  to  take  a  deposition  to  be  read  in 
evidence  before  a  military  court,  commission,  court  of  inquiry,  or 
board,  shall  be  compelled  to  incriminate  himself  or  to  answer  any 
questions  which  may  tend  to  incriminate  or  degrade  him. 

The  constitutional  guaranty  contained  in  the  fifth  amendment  is 
predicated  upon  the  "  well  established  and  universally  accepted 
maxim  of  the  common  law  that  a  witness  shall  not  be  compelled 
to  answer  any  question  that  tends  to  criminate  him  or  to  expose  him 
to  criminal  prosecution  or  to  a  penalty"  (Rice,  p.  298),  nor  to  an- 
swer any  question  not  material  to  the  issue  that  may  tend  to  degrade 
him.  It  must  be  noted  that  this  rule  draws  a  distinction  between 
questions  that  tend  to  criminate  and  those  that  tend  to  degrade^  the 
protection  extending  in  the  first  instance  against  questions  whether 
material  or  not,  while  in  the  second  instance  it  extends  only  to  ques- 
tions which  are  not  material  to  the  issue.  And  this  is  not  limited 
to  the  main  issues  in  the  case ;  for  instance,  "  as  the  credibility  of 
a  witness  is  always  an  issue,  he  must,  therefore,  answer  questions 
which  are  no  other  way  material  than  as  affecting  his  credibility." 
(Roscoe,  p.  149.) 

{a)  Rule  as  to  questions  tending  to  degrade. — -Where  common-law 
rules  have  been  written  into  our  Constitution  and  laws  they  have 
been  given  the  construction  that  attach  to  them  under  common-law 
practice,  and  so  the  provisions  of  A.  W.  24  must  be  presumed  to  have 
been  declaratory  of  the  common-law  protection  afforded  witnesses 
and,  as  to  questions  tending  to  "  degrade,"  must  be  accepted  with 
the  distinction  drawn  by  the  common  law — ^that  is,  as  extending  only 
to  questions,  not  material  to  the  issue,  that  tend  to  "  degrade." 

{h)  Where  privilege  as  to  self -crimination  ceases. — As  in  the  fol- 
lowing cases  the  witness  would  not  be  liable  to  the  law's  punishment, 
his  privilege  as  to  self-incrimination  ceases : 

Conviction  and  the  suffering  of  the  punishment ;  acquittal,  or  other 
former  jeopardy;  abolition  of  the  general  crime,  subsequent  to  its 
commission  (provided  the  rule  of  criminal  law  thereby  exonerates 
prior  offenders) ;  lapse  of  time  barring  prosecution  of  the  particular 
offense;  executive  pardon  for  the  particular  offense;  statutory  am- 
nesty, before  or  after  the  act,  for  the  particular  criminal  act  or  for 
the  offender.     (Wigmore,  p.  3163.) 

234.  Privilege  against  self-crimination  is  a  personal  one. — The  privi- 
lege of  a  witness  to  refuse  to  respond  to  a  question,  the  answer  to 
which  may  incriminate  him,  is  a  personal  one,  which  the  witness  may 
exercise  or  waive  as  he  may  see  fit.  It  is  not  for  the  judge  advocate 
or  accused  to  object  to  the  question  or  to  check  the  witness,  or  for 


EVIDENCE.  117 

the  court  to  exclude  the  question  or  direct  the  witness  not  to  answer. 
Where  it  appears  that  the  witness  is  ignorant  of  his  rights  and  that 
the  answer  to  a  question  might  incriminate  him,  the  president  of  the 
court  will  inform  him  of  his  right  to  decline  to  make  any  answer 
which  might  tend  to  incriminate  him. 

235.  Procedure  where  alleged  incriminating  question  is  asked. — Where 
the  court  overrules  an  objection  made  by  a  witness  that  the  answer 
to  a  question  will  incriminate  him  the  witness  should  answer  the 
question.  If  he  is  a  person  subject  to  military  law  and  refuses  to 
answer,  charges  may  be  preferred  against  him  under  A.  W.  96.  If 
he  is  a  civilian  witness  the  facts  should  be  certified  to  the  United 
States  district  atttomey  by  the  court  with  a  view  to  his  prosecution 
as  provided  in  A.  W.  23.  (See  A.  W.  23  as  to  other  tribunals  and 
agencies.)  In  any  case  of  refusal  to  answer  a  question  after  the 
court  has  held  it  to  be  a  proper  one,  the  refusal  may  be  commented 
on  by  the  judge  advocate  or  counsel  in  his  remarks  to  the  court. 

As  to  civilians,  as  well  as  those  in  the  military  service,  the  national- 
defense  act  (sec.  108,  Act  June  3,  1916,  39  Stat.,  209)  provides  that 
presidents  of  courts-martial  and  summary  court  officers  of  the  Na- 
tional Guard,  not  in  the  service  of  the  United  States,  shall  have 
power  "  to  issue  subpoenas  and  subpoenas  duces  tecum  and  to  enforce 
by  attachment  attendance  of  witnesses  and  production  of  books  and 
papers  and  to  sentence  for  refusal  to  be  sworn  or  to  answer  as  pro- 
vided in  actions  before  civil  courts."  In  such  cases  the  punishment 
would  be  for  contempt  of  court. 

236.  Not  self-crimination  to  require  accused  to  submit  to  physical 
examination. — ''^  The  prohibition  of  the  fifth  amendment  against  com- 
pelling a  man  to  give  evidence  against  himself  is  a  prohibition  of  the 
use  of  physical  or  moral  compulsion  to  extort  communications  from 
him  and  not  an  exclusion  of  his  body  as  evidence  when  it  is  material." 
(Holt  V,  U.  S.,  218  U.  S.,  245.)  In  addition  to  this  rule  of  general 
application  in  the  Federal  courts  it  has  been  decided  that : 

When  a  person  enlists  in  the  military  service  he  waives  or  surren- 
ders, during  the  period  of  his  enlistment,  some  of  the  rights  which 
he  possessed  as  a  citizen.  He  does  this  without  compulsion,  the  sur- 
render resulting  from  his  voluntary  enlistment  in  the  military  serv- 
ice.   (U.  S.'y.  Grimley,  137U.  S.,  147.) 

Among  other  incidents  of  the  military  status  to  which  he  volmi- 
tarily  submits  himself  is  that  of  physical  examination  by  proper 
military  authority  such,  for  example,  as  is  required  by  regulation 
when  he  enlists  in  the  military  establishment,  at  which  time  his  finger 
and  thumb  prints  are  taken,  and  any  marks  or  scars  which  appear 
on  any  part  of  his  body  are  made  the  subject  of  official  record  on  a 
card  provided  for  that  purpose  by  The  Adjutant  General,  and  the 
right  to  impose,  and  the  corresponding  duty  to  submit  to,  a  proper 


118  MANUAL  FOR  COURTS- MAETIAL. 

physical  examination,  at  the  discretion  and  upon  the  order  of  a  com- 
petent military  superior,  continues  to  exist  so  long  as  he  remains  in 
the  military  service  in  the  operation  of  his  contract  of  enlistment. 

The  following  are  illustrations  of  what  might  be  required  without 
violating  the  privilege  contained  in  the  fifth  amendment: 

(a)  The  admission  of  testimony  as  to  marks  and  scars  found  upon 
the  person  of  a  defendant,  in  a  criminal  prosecution,  during  a  forci- 
ble examination  of  him  with  a  view  to  ascertaining  his  identity  for 
the  purpose  of  arresting  him,  is  not  prohibited.  (O'Brien  v.  Indiana, 
L.  R.  A.,  Book  9,  1890,  p.  323;  see  also  12;  Cyc,  401.) 

(h)  Upon  the  trial,  a  question  was  raised  as  to  the  identity  of  the 
defendant.  One  witness  testified  that  he  knew  the  defendant,  and 
knew  that  he  had  tattoo  marks  (a  female  head  and  bust)  on  his 
right  forearm.  The  court  thereupon  compelled  the  defendant, 
against  his  objection,  to  exhibit  his  arm,  in  such  a  manner  as  to  show 
the  marks  to  the  jury.  (State  v.  Ah  Chuey,  alias  Sam  Good,  14 
Nev.,  79.) 

(c)  An  officer  also  of  the  Army  was  ordered  to  a  place  for  identi- 
fication by  civilian  witnesses  in  relation  to  charges  which  were  pend- 
ing against  the  officer,  and  it  was  held  that  such  an  order  would  not 
be  in  violation  of  the  officer's  privilege,  as  it  called  for  no  testimonial 
communication  from  him. 

It  follows  that  it  would  be  appropriate  for  the  court  to  order  the 
accused  to  remove  his  clothing  for  the  purpose  of  examination  by  the 
court  or  by  a  surgeon  who  would  later  testify  as  to  the  results  of  his 
examination  and,  upon  refusal  to  obey  the  order,  might  have  his 
clothing  removed  by  force.  The  accused  might  likewise  be  com- 
pelled to  try  on  clothing  or  shoes  or  place  his  bare  foot  in  tracks,  etc., 
but  where  resort  to  extreme  force  would  be  necessary  to  compel  com- 
pliance in  the  presence  of  the  court  it  would  comport  more  with  the 
dignity  of  the  court  to  have  a  surgeon  make  the  examination  out  of 
the  presence  of  the  court  and  testify  as  to  the  result  of  the  examina- 
tion, or  to  advise  the  accused  as  to  the  purpose  of  the  examination  and 
to  warn  him  that  his  refusal  to  obey  would  be  considered  as  an 
admission  on  his  part  of  what  was  sought  to  be  ascertained  by  the 
examination.  This  conclusion  would  be  quite  within  legal  bounds  as 
to  presumption  of  facts. 

237.  Manner  of  proving  contents  of  writing. — A  writing  is  the  best 
evidence  of  its  own  contents  and  must  be  introduced  to  prove  its 
contents.  But  if  it  has  been  lost  or  destroyed  or  it  is  otherwise  satis- 
factorily shown  that  the  writing  can  not  be  produced,  then  the  con- 
tents may  be  proved  by  a  copy  or  by  oral  testimony  of  witnesses  who 
have  seen  the  writing.  Under  this  rule  if  it  is  desired  to  prove  the 
contents  of  a  private  letter  or  other  unofficial  paper,  or  an  otRcial 
paper  such  as  a  pay  voucher,  written  claim  against  the  Government, 


EVTOENCE.  119 

pay  roll  or  muster  roll,  company  morning  report,  enlistment  paper, 
etc.,  the  strict  and  formal  method  of  doing  so  is  to  prove  by  proper 
evidence  that  the  writing  is  in  fact  what  it  purports  to  be,  and  then 
introduce  in  evidence  the  original  or  a  properly  authenticated  copy. 

In  order  to  prove  that  a  writing  is  what  it  purports  to  be,  in  case 
of  a  private  letter,  the  person  who  received  the  letter  should  testify 
that  he  received  it  and  he  should  identify  it.  Then  it  should  be 
proved  that  the  signature  is  in  the  handwriting  of  the  purported 
writer  of  the  letter.  But  in  proving  the  genuineness  of  letters  the 
rule  is  that  the  arrival  by  mail  of  a  reply  purporting  to  be  from  the 
addressee  of  a  prior  letter  duly  addressed  and  mailed,  is  sufficient  evi- 
dence of  the  genuineness  of  the  reply  to  justify  its  introduction  in 
evidence.  A  similar  rule  prevails  as  to  telegrams  purporting  to  be 
from  the  addressee  of  a  prior  telegram  or  telephone  message. 

If  the  writing  is  an  official  document  such  as  a  pay  voucher,  the 
person  having  official  custody  should  produce  it  in  court  and  testify 
that  he  is  the  custodian  of  the  writing  and  that  it  is  the  pay  voucher 
of  the  person  whose  name  is  signed.  The  signature  to  the  voucher 
should  be  proved  to  be  genuine  if  that  is  not  admitted.  In  court- 
martial  practice  the  opposing  party  usually  admits  a  public  document 
without  requiring  such  strict  proof.  The  entries  in  pay  vouchers, 
muster  and  pay  rolls,  company  morning  reports,  and  other  public 
records  used  in  the  Army,  are  open  to  inspection  by  both  parties,  and 
contain  numerous  entries  not  pertaining  to  the  case  being  tried.  It 
is  the  practice,  in  the  absence  of  an  objection,  to  prove  their  contents 
by  the  oral  testimony  of  a  witness,  usually  the  custodian,  reading  the 
material  matter  in  court. 

When  the  original  consists  of  numerous  writings  which  can  not 
conveniently  be  examined  by  the  court,  and  the  fact  to  be  proved  is 
the  general  result  of  the  whole  collection,  and  that  result  is  capable 
of  being  ascertained  by  calculation,  the  calculation  may  be  made  by 
some  competent  person  and  the  result  of  the  calculation  testified  to 
by  him,  as,  for  instance,  if  the  fact  to  be  proved  is  the  balance  shown 
by  account  books.  In  such  case  the  opposite  party  should  have  access 
to  the  books  and  papers  from  which  the  calculation  is  made. 

It  is  customary  for  the  party  introducing  a  writing  in  evidence  to 
read  it  to  the  court.  But  unless  the  court  directs  it  to  be  read  at 
once  it  may  be  read  at  any  time. 

Section  IV. 
DOCUMENTS. 

238.  Public  records. — An  important  exception  to  the  rule  that  the 
contents  of  a  writing  must  be  proved  by  the  writing  itself  is  in  the 
case  of  public  records  required  to  be  preserved  on  file  in  a  public 


120  MANUAL  FOR   COUKTS-MAETIAL. 

office,  in  which  case  duly  authenticated  copies  may  be  admitted  in 
evidence  equally  with  originals  without  first  proving  that  the  origi- 
nals have  been  lost,  destroyed,  or  their  absence  accounted  for  in  some 
other  way.  This  exception  is  made  necessary  by  the  inconvenience  to 
the  public  business  that  would  result  if  such  records  were  removed. 
The  following  order  covers  this  exception  so  far  as  concerns  records 
and  papers  in  the  War  Department  and  its  bureaus  and  in  military 
offices: 

Copies  of  any  records  or  papers  in  the  War  Department,  in  any  of 
its  bureaus,  or  in  an  office  of  any  of  the  supply  departments;  or  at 
the  headquarters  of  an  army,  field  army,  division,  brigade,  or  regi- 
ment; or  of  a  territorial  division,  territorial  department,  or  post,  if 
authenticated  by  the  impressed  stamp  of  the  bureau,  office,  or  head- 
quarters having  custody  of  the  originals  (for  example,  "The  Adju- 
tant General's  Office,  official  copy"),  may  be  admitted  in  evidence 
equally  with  the  originals  thereof  before  any  military  court,  commis- 
sion, or  board,  or  in  any  administrative  matter  under  the  War 
Department.     (G.  O.  16,  W.  D.,  1912.) 

239.  Certain  official  writings  are  evidence  of  facts  recited  therein. — 
Where  the  law  requires  that  the  evidence  of  certain  facts  and  events 
shall  be  recorded  in  certain  writings,  the  original  writing  containing 
this  evidence  is  competent,  i.  e.,  prima  facie  evidence  of  the  facts  and 
events  recorded  in  it.  For  instance,  the  original  of  an  enlistment 
paper,  the  physical  examination  paper,  outline  figure  card  and 
finger-print  card,  and  the  original  morning  report  sheet  are  com- 
petent evidence  of  the  facts  recited  in  them.  By  authority  of  the  War 
Department  order,  properly  authenticated  copies  of  these  papers 
may  be  admitted  in  evidence  equally  with  the  original.  (See  par. 
238.)  A  descriptive  and  assignment  card,  however,  is  not  an  original 
paper.  All  the  information  it  contains  is  compiled  from  other  origi- 
nal sources,  and  therefore  it  is  not  evidence  of  the  facts  recited  in  it. 

240.  Comparison  of  handwriting. — The  common-law  rule  of  evidence 
would  not  permit  a  comparison  of  handwriting  unless  the  writing 
to  be  used  as  a  standard  was  properly  in  the  case  for  other  purposes 
than  mere  comparison.  This  rule  was  changed  by  act  of  Congress 
approved  February  26,  1913  (37  Stat.,  683),  which  provides— 

That  in  any  proceeding  before  a  court  or  judicial  officer  of  the 
United  States  where  the  genuineness  of  the  handwriting  of  any  per- 
son may  be  involved,  any  admitted  or  proved  handwriting  of  such 
person  shall  be  competent  evidence  as  a  basis  for  comparison  by  wit- 
nesses, or  by  the  jury,  court,  or  officer  conducting  such  proceeding  to 
prove  or  disprove  such  genuineness. 

But  before  admitting  such  specimens  of  handwriting,  satisfactory 
evidence  should  be  offered  as  to  the  genuineness  of  the  same. 


EVIDENCE.  121 

The  rule  prescribed  by  Congress  will  govern  in  courts-martial 
procedure. 

241.  Use  of  memoranda. — Memoranda  may  be  used  to  aid  the  memory 
or  to  supply  facts  once  known  but  now  forgotten.  Memoranda  are 
therefore  of  two  sorts:  First,  if  the  witness  does  not  actually  re- 
member the  facts  but  relies  on  the  memorandum  exclusively  (as  in 
the  case  of  a  bookkeeper  using  an  old  account  book),  then  the  wit- 
ness must  be  able  to  guarantee  that  the  record  accurately  represented 
his  knowledge  and  recollection  at  the  time  of  its  making,  but  it  is 
not  necessary  that  he  should  himself  have  made  the  record  if  he  can 
state  from  his  present  recollection  that  it  was  correct  when  made 
and  the  entries  must  have  been  made  at  or  near  the  time,  and  the 
recollection  at  such  time  must  have  been  fresh  as  to  the  facts  recorded. 
Second,  if  the  witness  can  actually  remember  the  facts  and  merely 
needs  the  memorandum  to  stimulate  or  revive  his  memory,  or  a  part 
of  it,  then  the  above  limitations  do  not  strictly  apply.  But  the  court 
should  see  to  it  that  no  attempt  is  made  to  use  such  a  paper  to  impose 
a  false  memory  on  the  court  under  guise  of  refreshing  it. 

The  memorandum  to  be  used  must  always,  on  demand,  be  shown 
to  the  opponent  for  purposes  of  inspection  and  cross-examination, 
and  fairness  and  justice  require  that  where  a  memorandum  is  con- 
sulted before  trial  for  refreshing  a  witness's  recollection,  statement 
should  be  made  by  the  judge  advocate  or  counsel  to  that  effect,  and 
the  memorandum  should  be  brought  into  court  by  the  side  whose 
witness  has  so  consulted  it. 

242.  Memorandum  as  evidence. — ^Where  a  memorandum  does  not 
serve  to  refresh  the  recollection  of  the  witness,  but  he  can  state  that  it 
was  made  when  his  memory  was  fresh  and  can  give  the  guaranty  of 
accuracy  and  recollection  called  for  by  the  preceding  section,  the 
memorandum  itself  will  be  admissible.  Where  the  witness's  cer- 
tainty rests  on  his  usual  habit  or  course  of  business  in  making  mem- 
oranda or  records,  it  is  sufficient. 

243.  Memorandum  for  refreshing  recollection. — Where  a  witness  states 
that  the  memorandum  to  be  used  refreshes  his  recollection  to  the 
extent  of  his  now  remembering  the  data  contained  therein,  the 
common  rule  is  to  have  him  testify  as  to  such  facts  without  admit- 
ting in  evidence  the  memorandum  itself. 

244.  Books  of  account. — Entries  in  books  of  account,  where  such 
books  are  proven  to  have  been  kept  in  the  regular  course  of  business, 
and  the  entrant  is  dead,  insane,  out  of  the  jurisdiction  of  the  court, 
or  otherwise  unavailable  to  testify,  are  admissible  as  evidence.  Also 
the  lack  of  an  entry  in  a  series  of  written  entries  is  admissible  as  an 
implied  statement  that  no  events  occurred  of  the  kind  that  would 
have  been  recorded. 


122  MANUAL  FOR  COURTS- MARTIAL. 

Where  the  entrant  is  available  to  testify  in  court,  books  of  account 
will  be  used,  just  as  memoranda  are  used  for  the  purpose  of  refresh- 
ing the  recollection  of  the  witness,  and  may  be  introduced  in  evidence 
in  connection  with  his  testimony. 

Where  the  entrant  only  records  an  oral  report  or  written  memo- 
randum made  in  the  regular  course  of  business  by  another  person 
or  persons,  such  other  person  or  persons,  if  available,  must  be  called 
to  testify. 

The  original  document  of  entry  must  be  produced  or  accounted 
for.  Where  a  composite  entry  is  used,  the  extent  to  which  inter- 
mediate memoranda  must  be  produced  depends  on  the  circumstances 
of  each  case.  As  between  ledger  and  daybook  or  other  kinds,  the 
book  required  is  that  which  contains  the  first  regular  and  collected 
record  of  the  transactions.     (Wigmore,  sec.  1530.) 

245.  Maps,  photographs,  etc. — Maps,  photographs,  sketches,  etc.,  as 
to  localities,  wounds,  etc.,  are  admissible  as  evidence  when  properly 
verified  by  the  party  that  made  them  or  when  coming  from  official 
sources  that  are  a  guaranty  of  truthfulness  and  accuracy.  This 
character  of  evidence  is  capable  of  gross  misrepresentation  of  facts 
and  should  be  carefully  scrutinized.  Finger  prints,  upon  such  veri- 
fication or  guaranty,  are  admissible. 

Section  V. 
EXAMINATION   OF   WITNESSES. 

246.  Witnesses  examined  apart  from  each  other. — ^Witnesses,  after 
having  been  first  sworn  as  provided  in  par.  134,  are  usually  examined 
apart  from  each  other,  no  witness  being  allowed  to  be  present  during 
the  examination  of  another  who  is  called  before  him.  But  this  rule 
is  not  inflexible;  it  is  in  practice  subject  to  the  discretion  of  the 
court,  nor  is  it  ever  so  rigidly  observed  as  to  exclude  the  testimony 
of  a  person  because  he  has  been  presenf  at  the  examination  of  other 
witnesses. 

247.  Objections  to  competency;  when  made. — Any  objection  to  the 
witness's  competency  should  be  made  before  he  is  sworn.  If  his  in- 
competency should  later  appear,  however,  a  valid  objection  should 
be  sustained. 

248.  Number  of  witnesses  required. — Though  there  are  occasional 
dangers  in  trusting  to  a  single  witness,  the  testimony  of  a  single 
qualified  witness  to  the  facts  in  issue  would  suffice  to  sustain  a  con- 
viction, except  as  to  (1)  treason,  where  there  must  be  two  witnesses 
testifying  credibly  to  the  same  overt  act,  or  (2)  perjury,  where  there 
must  be  either  (a)  a  second  witness  to  the  falsity  alleged  or  (&)  a  cor- 
roboration of  a  single  witness  by  some  other  form  of  evidence.    The 


EVIDENCE.  123 

rule  as  to  perjury  does  not  apply,  however,  where  the  falsity  can  be 
inferred  from  a  contradictory  statement  made  by  the  accused.  ( Wig- 
more 's  P.  C,  338,  339.)  For  instance,  where  a  person  is  charged 
with  a  perjury  as  to  facts  directly  disproved  by  documentary  or 
written  testimony  springing  from  himself,  with  circumstances  show- 
ing the  corrupt  intent;  in  cases  where  the  perjury  charged  is  con- 
tradicted by  a  public  record,  proved  to  have  been  well  known  to 
the  defendant  when  he  took  the  oath;  and  in  cases  where  the  false 
swearing  can  be  proved  by  his  own  letters  relating  to  the  fact  sworn 
to,  or  by  other  written  testimony  existing  and  being  found  in  the 
possession  of  a  defendant  and  which  has  been  treated  by  him  as 
containing  the  evidence  of  the  fact  recited  in  it.  (U.  S.  v.  Wood, 
14  Pet.,  430.) 

(See  par.  224  as  to  corroboration  of  an  accomplice  and  see  par.  225 
as  to  corroboration  of  a  confession.) 

249.  Order  of  examination  of  witnesses. — While  the  proper  and  usual 
order  and  sequence  of  examination  of  witnesses  contemplates  that  the 
witnesses  for  the  prosecution  shall  be  called  first  and  then  the  wit- 
nesses for  the  accused,  and  afterwards  the  witnesses  for  the  prosecu- 
tion in  rebuttal  of  testimony  brought  out  by  the  accused,  and  then 
the  witnesses  for  the  accused  in  rebuttal  of  those  last  introduced  by 
the  prosecution,  and  then  witnesses  by  the  court ;  and  that  the  method 
of  examining  each  witness  shall  be  direct  examination,  cross-examina- 
tion, redirect  examination,  recross-examination,  and  examination  by 
the  court,  the  court  may,  in  the  interest  of  truth  and  justice,  call 
or  recall  witnesses,  or  permit  their  recall  at  any  stage  of  the  pro- 
ceedings; it  may  permit  material  testimony  to  be  introduced  by 
either  party  quite  out  of  its  regular  order  and  place,  or  permit  a  case 
once  closed  by  either  or  both  sides  to  be  reopened  for  the  introduction 
of  testimony  previously  omitted,  if  convinced  that  such  testimony 
is  so  material  that  its  omission  would  leave  the  investigation  incom- 
plete. In  all  such  cases  both  parties  must  be  present,  and  any  testi- 
mony thus  received  would  be  subject  to  cross-examination  and  re- 
buttal by  the  party  to  whom  it  may  be  adverse. 

250.  Direct  examination. — The  first  question  to  be  asked  each  wit- 
ness, whether  called  for  the  prosecution  or  defense  or  by  the  court, 
will  be,  whether  he  knows  the  accused  and  if  he  does  to  state  who  he 
is.  This  question  is  always  asked  by  the  judge  advocate.  The  ac- 
cused having  been  identified  the  examination  of  the  witness  is  con- 
tinued by  the  person  calling  him.  All  questions  and  answers  are 
recorded  in  full,  and  as  far  as  possible  in  the  exact  language  of  the 
witness.  If  an  objection  is  made  to  a  question,  the  reason  for  the 
objection  will  be  stated. 

251.  Cross-examination. — In  general  the  cross-examination  must  be 
limited  to  matters  brought  out  by  the  direct  examination  of  the  wit- 


124  MANUAL   FOR   COUETS-MAliTIAL. 

ness,  but  in  the  discretion  of  the  court  exceptions  may  be  made  to 
this  rule.  As  it  is  the  purpose  of  the  cross-examination  to  test  the 
credibility  of  the  witness  it  is  permissible  to  investigate  the  situation 
of  the  witness  with  respect  to  the  parties  and  to  the  subject  of  the 
litigation,  his  interest,  his  motives,  inclinations,  and  prejudices,  his 
means  of  obtaining  a  correct  and  certain  knowledge  of  the  facts  to 
which  he  bears  testimony,  the  manner  in  which  he  has  used  those 
means,  his  powers  of  discernment,  memory,  and  description.  Lead- 
ing questions  may  be  freely  used  on  cross-examination.  (Davis, 
p.  285.) 

252.  Redirect  and  recross-examination. — Ordinarily  the  redirect  ex- 
amination will  be  confined  to  matters  brought  out  on  the  cross- 
examination,  and  the  recross-examination  will  be  confined  to  matters 
brought  out  on  the  redirect  examination.  But  in  these  matters  the 
court,  in  the  interest  of  truth  and  justice,  should  be  liberal  in  relax- 
ing the  rule. 

253.  Examination  by  the  court. — The  court  or  a  member  may  ask 
questions  of  a  witness  when  it  is  apparent  that  the  examination  of 
the  witness  already  made  has  failed  to  bring  out  matters  material 
to  the  issues,  and  for  the  same  reasons  a  witness  may  be  recalled 
or  a  new  witness  summoned  by  the  court. 

254.  Leading  questions. — Leading  questions,  that  is,  questions  which 
suggest  the  answer  it  is  desired  the  witness  shall  make,  or  which, 
embodying  a  material  fact,  are  susceptible  of  being  answered  by 
a  simple  yes  or  no,  should  not  be  asked.  For  example,  "Did  you 
not  see_the  accused  leave  his  quarters  with  a  bundle  under  his  arm?" 
is  a  leading  question.  In  such  case  the  question  should  be  "  Did 
you  see  the  accused?"  If  the  answer  is  in  the  affirmative,  add 
"What  was  he  doing?"  Again,  for  example,  the  question,  "Did 
you  hear  the  accused  say  he  did  not  intend  to  come  back?"  would 
be  leading.  The  proper  form  of  the  question  should  be:  "Did  the 
accused  say  anything?"  If  the  answer  is  in  the  affirmative,  add 
"  State  what  he  said."  So,  where  a  knife  is  introduced  in  evidence 
a  witness  should  not  be  asked  whether  that  is  the  knife  he  saw  the 
accused  stab  Pvt.  A  with,  but  he  should  be  asked  whether  he  recog- 
nizes the  knife,  and  if  he  does,  where  he  saw  it  and  what  was  done 
with  it,  etc.  The  following  are  the  exceptions  to  the  rule  that  lead- 
ing questions  will  not  be  asked : 

(1)  Leading  questions  may  be  asked  on  cross-examination. 

(2)  To  abridge  the  proceedings,  the  witness  may  be  led  at  once  to 
points  on  which  he  is  to  testify,  and  the  admitted  facts  in  the  case 
may  be  recapitulated  to  him.  The  rule  is  therefore  not  applicable 
to  that  part  of  the  examination  of  a  witness  which  is  merely  intro- 
ductory. For  example,  in  a  desertion  case  where  the  accused  admits 
that  on  a  certain  day  at  a  certain  place  he  was  apprehended  as  a 


EVIDENCE.  125 

deserter  by  a  policeman,  the  latter  when  on  the  stand  may  have  his 
attention  directed  at  once  to  the  occasion  by  such  a  question  as 
whether  at  a  certain  time  and  place  he  arrested  the  accused  as  a 
deserter.  The  witness  having  answered  the  question  in  the  affirm- 
ative, in  the  next  question  he  might  properly  be  asked  to  state  the  de- 
tails connected  with  the  arrest.  So  in  a  case  of  disobedience  of  orders 
where  there  is  no  dispute  that  the  alleged  disobedience  took  place 
at  a  certain  time  and  place  and  that  it  involved  certain  persons, 
the  witness  might  properly  be  asked  whether  he  was  present  at  the 
place  where  and  time  when  the  accused  was  placed  in  arrest  by  a  cer- 
tain officer  for  not  carrying  out  a  certain  order.  The  witness  having 
answered  in  the  affirmative,  he  may  be  asked  to  state  all  the  cir- 
cumstances. 

(3)  When  the  witness  appears  to  be  hostile  to  the  party  calling  him 
or  is  manifestly  unwilling  to  give  evidence. 

(4)  When  there  is  an  erroneous  statement  in  the  testimony  of  the 
witness,  evidently  caused  by  want  of  recollection,  which  a  suggestion 
may  assist,  as,  for  instance,  where  he  misstates  a  date  or  an  hour. 

(5)  Where,  from  the  nature  of  the  case,  the  mind  of  the  witness 
can  not  be  directed  to  the  subject  of  the  inquiry  without  a  particular 
specification  of  it,  as  where  he  is  called  to  contradict  another  witness 
who  has  testified  that  the  accused  made  a  certain  statement  on  a 
certain  occasion  in  the  hearing  of  a  number  of  soldiers,  each  of  them 
may  be  asked  whether  he  heard  the  accused  make  the  statement. 

The  court,  in  its  discretion,  vj^ould  be  justified  in  allowing  liberal 
departures  from  the  rule. 

255.  Recalling  of  witnesses. — Where  a  witness  is  recalled  to  the  wit- 
ness stand  he  will  not  be  sworn  again,  but  will  be  reminded  that  he 
has  been  sworn  in  the  case  and  is  still  under  oath.  A  failure  to  so 
remind  him,  however,  does  not  affect  the  validity  of  the  trial  and 
will  not  be  ground  for  rejecting  the  testimony. 

Section  VI. 
CREDIBILITY   OF  WITNESSES. 

256.  What  credibility  consists  in. — The  credibility  of  a  witness  is  his 
worthiness  of  belief,  and  is  determined  by  his  character,  by  the  acute- 
ness  of  his  powers  of  observation,  the  accuracy  and  retentiveness  of 
his  memory,  by  his  general  manner  in  giving  evidence,  his  relation  to 
'the  matter  in  issue,  his  appearance  and  deportment,  prejudices,  by 
his  general  reputation  for  truth  and  veracity  in  the  community  where 
he  lives,  by  comparison  of  his  testimony  with  other  statements  made 
by  him  out  of  court,  by  comparison  of  his  testimony  with  that  of 
others,  etc.    From  all  these  the  court  will  draw  its  own  conclusions  as 


126  MANUAL  FOR   COURTS- MARTIAL. 

to  the  credibility  of  the  witness,  attaching  only  such  weight  to  his 
evidence  as  all  the  facts  seem  to  warrant.  There  may  even  be  cases  in 
which  the  court  will  reject  all  the  testimony  of  a  witness.  This  may 
be  for  any  of  the  reasons  set  forth  above.  No  statement  will  be  made 
by  the  court  of  the  weight  given  to  any  testimony  or  the  amount  re- 
jected, except  as  it  may  desire  to  inform  the  reviewing  authority  of 
the  reasons  which  have  led  to  its  findings. 

257.  Proof  of  character  by  general  reputation. — Where  impeachment 
of  a  witness  for  bad  character  is  undertaken  it  must  be  limited  to 
proof  of  his  general  reputation  for  truth  and  veracity  in  the  com- 
munity in  which  he  lives.  For  a  military  man  this  would  mean  the 
reputation  that  he  bore  amongst  the  members  of  his  regiment  or  com- 
pany, or  amongst  those  stationed  at  a  post  and,  if  stationed  at  or 
near  a  town,  amongst  the  residents  of  the  town.  Personal  observa- 
tion as  to  his  character  is  not  admissible. 

258.  Conviction  of  crime. — Evidence  of  the  conviction  of  any  crime, 
even  by  a  foreign  tribunal  and  whether  felony  or  misdemeanor,  is 
admissible  for  the  purpose  of  diminishing  the  credit  due  to  his  testi- 
mony. (1  Greenleaf,  sec.  376.)  It  is  allowable  to  ask  a  witness  on 
cross-examination  whether  he  has  ever  been  convicted  of  a  crime,  but 
if  he  denies  it,  proof  may  only  be  made  by  copy  of  the  record  of  his 
conviction. 

259.  Self-contradiction. — Proof  may  be  offered  of  inconsistent  state- 
ments made  by  the  witness  on  specific  facts,  but  on  collateral  facts 
the  inconsistency  can  not  be  evidenced  by  calling  other  witnesses  to 
testify  to  his  self -contradictory  assertion. 

Where,  on  cross-examination,  a  witness  is  questioned  as  to  his  self- 
contradictory  statements,  his  attention  should  be  called  to  the  time, 
place,  and  surrounding  circumstances  and  to  the  person  to  whom  he 
is  assumed  to  have  made  the  contradictory  statements. 

Where  the  contradictory  statement  is  contained  in  a  writing,  it 
need  not  be  shown  to  the  witness  before  questioning  him  about  it. 

260.  Prejudice,  bias,  etc. — Prejudice,  bias,  relationship,  etc.,  may  be 
shown  to  diminish  the  credibility  of  the  witness,  either  by  the  testi- 
mony of  other  witnesses  or  by  cross-examination  of  the  witness  him- 
self.   Such  matters  are  never  regarded  as  collateral. 

261.  Credibility  of  accused  as  a  witness. — If  the  accused  testifies,  his 
credibility  as  a  witness  may  be  attacked  on  any  of  the  grounds  stated 
in  the  preceding  paragraphs. 

262.  Proof  of  contradictory  statements  out  of  court. — The  strict  rule 
is  that,  before  testimony  can  be  admitted  to  prove  that  a  witness  has 
made  out  of  court  statements  that  are  in  conflict  with  his  testimony 
in  court,  a  foundation  therefor  must  be  laid  by  asking  the  witness 
on  cross-examination  whether  he  has  not  made  on  a  certain  occasion 
at  a  certain  time  or  under  certain  circumstances  the  alleged  contra- 


EVIDENCE.  127 

dictory  statement.  If  the  witness  admits  making  such  a  contradic- 
tory statement  he  will  be  permitted  to  explain  it.  If  he  denies  mak- 
ing it,  evidence  may  be  introduced  to  prove  it. 

Section  VII. 
DEPOSITIONS   AND    FORMER   TESTIMONY. 

263.  Depositions  admissible. — Depositions  taken  under  the  provision 
of  A.  W.  25  and  26  "may  be  read  in  evidence  before  any  military 
court  or  commission  in  any  case  not  capital  or  in  any  proceeding 
before  a  court  of  inquiry  or  a  military  court." 

264.  Depositions  for  defense  in  capital  cases. — Deposition  testimony 
may  be  adduced  for  the  defense  in  capital  cases.  (A.  W.  26.)  Where 
the  defense  calls  for  such  testimony  in  capital  cases  the  witnesses  may 
be  cross-examined  as  fully  as  witnesses  in  a  case  not  capital. 

265.  Objections  as  to  competency  of  witness  and  admissibility  of  evi- 
dence.— The  same  rules  as  to  competency  of  witnesses  and  admis- 
sibility of  evidence  apply  in  the  taking  of  evidence  by  deposition 
that  apply  in  the  examination  of  a  witness  before  the  court,  except 
that  a  wider  latitude  than  usual  should  be  allowed  as  to  leading 
questions. 

If  the  interrogatories  and  cross-interrogatories  for  depositions  are 
prepared  for  acceptance  by  the  court,  in  open  session,  objection  to 
the  competency  of  the  deponent,  if  grounds  of  objection  are  known 
at  the  time,  as  well  as  objections  to  questions,  should  be  raised  at 
such  session,  and  ordinarily  be  passed  upon  by  the  court  at  that  time. 
The  court  should,  however,  in  the  interests  of  justice,  entertain  such 
objections  when  the  depositions  are  offered  in  evidence,  but  might 
in  a  proper  case  call  upon  judge  advocate  or  counsel  for  explanation 
as  to  why  they  had  failed  to  make  the  objection  at  the  proper  time. 

If  the  interrogatories  and  cross-interrogatories  are  agreed  upon  by 
both  parties  in  advance  of  the  assembling  of  the  court — and  this  is 
the  usual  practice — objections  to  questions  and  to  the  admissibility 
of  evidence  will  be  made  when  the  depositions  are  offered  in  evidence. 

266.  Examination  of  deposition  by  counsel. — Upon  receipt  of  the 
deposition  the  judge  advocate  will  advise  the  accused  or  his  counsel  of 
that  fact  and  will  give  them  an  opportunity  to  examine  the  deposi- 
tion before  the  trial. 

267.  Reading  of  depositions. — Ordinarily  depositions  will  be  read  to 
the  court  by  the  party  in  whose  behalf  they  are  taken,  but  if  the 
accused  is  not  represented  by  counsel  the  judge  advocate  will  read 
to  the  court  the  deposition  taken  on  his  behalf,  unless  the  accused 
requests  to  read  them.     After  being  read  to  the  court  a  deposition 


128  MANUAL   FOR   COURTS-MARTIAL. 

will  be  properly  marked  for  identification  purposes  and  attached 
to  the  record,  and  the  record  will  show  that  it  has  been  introduced 
and  read  to  the  court. 

268.  Miscellaneous  provisions  as  to  depositions. — The  party  at  whose 
instance  a  deposition  has  been  taken  should  not  be  permitted  to 
introduce  only  such  parts  of  the  deposition  as  are  favorable  to  him 
or  as  he  may  elect  to  use;  he  must  offer  the  deposition  in  evidence 
as  a  whole  or  not  offer  it  at  all.  If  the  party  at  whose  instance  a 
deposition  has  been  taken  decides  not  to  put  it  in,  it  may  be  put  in 
evidence  by  the  other  party. 

269.  Affidavits  not  admissible. — Affidavits  taken  without  notice  and 
not  as  depositions  under  the  provisions  of  A.  W.  25  and  26  are  in  no 
case  admissible  as  evidence  unless  expressly  consented  to  by  the  judge 
advocate  and  the  accused  with  full  knowledge  of  his  rights. 

270.  Certificate  of  discharge. — The  "  certificate  of  discharge  "  may  be 
used  by  the  defense,  either  before  or  after  the  findings,  for  proof  of 
good  character. 

271.  Statement  of  service. — The  statement  of  service  and  number  of 
previous  convictions  of  the  accused,  as  fou  id  in  the  upper  quarter 
of  the  front  page  of  the  charge  sheet,  will  not  be  permitted  to  be  seen 
or  examined  by  members  of  the  general  or  special  court-martial  try- 
ing a  soldier  until  after  they  have  reached  their  findings.  In  the 
event  of  conviction  the  accused,  if  a  soldier,  will  be  asked  whether 
such  statement  of  service  is  correct,  and  such  statement  will  be 
examined  and  considered  by  the  court  for  the  purpose  of  determining 
proper  punishment  in  view  of  length  of  service. 

The  statement  of  service  may  be  used  by  the  defense,  either  before 
or  after  the  findings,  for  proof  of  good  character. 

272.  Former  testimony  before  court  of  inquiry. — The  record  of  the 
proceedings  of  a  court  of  inquiry  may  be  read  in  evidence  before  any 
court-martial  or  military  commission  in  any  case  not  capital  nor 
extending  to  the  dismissal  of  an  officer,  and  may  also  be  read  in  evi- 
dence in  any  proceeding  before  a  court  of  inquiry  or  a  military 
board :  Provided,  That  such  evidence  may  be  adduced  by  the  defense 
in  capital  cases  or  cases  extending  to  the  dismissal  of  an  officer. 
(A.  W.  27.) 

The  ends  of  justice  would  require  that  the  reasonable  tests  for 
admissibility  laid  down  in  par.  275,  as  to  examination  and  cross- 
examination  on  the  same  issues  and  as  to  correctness  and  complete- 
ness of  the  record  where  former  testimony  before  civil  courts  and 
courts-martial  is  offered,  should  be  applied  as  to  the  admission  of 
the  record  of  a  court  of  inquiry. 

273.  Evidence  of  pardon. — When  a  special  plea  in  bar  of  trial,  based 
on  a  pardon,  is  offered  by  the  defense,  the  best  evidence  of  such  par- 
don, if  in  the  nature  of  an  individual  pardon,  will  be  the  document 


EVIDENCE.  129 

signed  by  the  President  himself,  and,  if  in  the  nature  of  a  general 
amnesty,  by  an  official  copy  of  the  proclamation  or  order  publishing 
such  amnesty.  If  such  document  or  order  is  not  sufficiently  explicit 
to  determine  whether  or  not  the  offense  for  which  the  accused  is  on 
trial  is  the  same  as  that  covered  by  the  pardon,  then  other  evidence 
must  be  introduced  to  fill  the  gap.  Where  the  pardon  is  in  the  nature 
of  a  constructive  pardon,  the  evidence  will  be  of  such  facts  and  cir- 
cumstances as  it  is  contended  constitute  such  pardon. 

274.  Evidence  of  former  trial  by  court-martial  or  civil  court. — ^Where 
a  plea  in  bar  of  trial,  based  on  a  former  trial  by  court-martial  for 
the  same  offense  and  conviction  or  acquittal  of  the  same  is  offered 
for  the  defense  the  best  evidence  of  such  conviction  or  acquittal  will 
be  the  order  of  the  reviewing  authority  publishing  the  case.  Wh(^re 
such  order  is  not  sufficiently  explicit  to  determine  whether  or  not  the 
offense  for  which  the  accused  is  on  trial  is  the  same  as  that  the  con- 
viction or  acquittal  of  which  he  pleads  in  bar,  then  the  original  court- 
martial  record  should  be  offered  in  evidence. 

Where  a  plea  in  bar  is  on  a  former  trial  and  conviction  or  acquittal 
by  a  Federal  court — ^the  action  of  a  State  or  any  other  than  a  Federal 
court  does  not  operate  as  a  bar  to  second  trial — ^the  best  evidence  of 
such  conviction  or  acquittal  will  be  a  duly  certified  copy  of  the  in- 
dictment and  findings  and  conviction  or  acquittal,  given  by  the  pub- 
lic officer  whose  duty  it  is  to  keep  the  original. 

275.  Former  testimony  in  civil  courts  and  courts-martial. — ^Where  a 
witness,  who  has  testified  in  either  a  Federal  or  State  court  at  a 
former  trial  on  the  same  issues  raised  in  the  case  on  trial  and  was 
fully  examined  and  cross-examined,  is  dead  or  is  beyond  the  reach 
of  the  process  of  the  court  and  his  personal  attendance  can  not  be 
secured,  then  the  stenographic  report  of  his  testimony,  if  proven  to 
be  correct  and  complete  by  the  person  by  whom  it  was  reported,  will 
be  admissible  and  may  very  properly  be  accorded  the  same  weight  as 
a  deposition  duly  taken  on  notice.  (Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v, 
Myers,  80  Fed.  Eep.  361,  365.)  Ordinarily,  however,  this  situation 
should  be  met  by  the  judge  advocate  and  counsel  for  accused  procur- 
ing in  advance  of  trial  a  transcript  of  the  stenographer's  notes,  duly 
sworn  to  by  him  as  correct  and  complete,  and  submitting  it  to  the 
opposite  party  for  his  inspection.  If  acknowledged  to  be  correct  and 
complete,  then  such  transcript  will  be  received  in  evidence. 

Where  the  testimony  desired  is  of  a  witness  who  had  testified  in  a 
former  trial  by  court-martial,  all  conditions  being  approximately  the 
same  as  those  cited  in  the  first  paragraph  of  this  section,  the  original 
court-martial  record  itself  will  be  admissible,  and  the  stenographic 
reporter  will  only  be  called  where  a  question  is  raised  as  to  the  cor- 
rectness or  completeness  of  the  recorded  testimony. 

91487°— 17 10 


130  MANUAL  FOR  COUBTS-MARTTAU 

Section  VIII. 
PRESUMPTIONS, 

276.  Presumptions. — Presumptions  constitute  a  large  part  of  the 
law  of  evidence.  They  are  of  two  kinds — presumptions  of  law  and 
presumptions  of  fact. 

277.  Presumptions  of  law. — Broadly  speaking,  a  presumption  of  law 
is  a  rule  of  law  that  when  certain  circumstances  exist  the  court  must 
presume  certain  other  circumstances.  Presumptions  of  law  are  di- 
vided into  conclusive  and  disputable  presumptions.  In  case  of  a  con- 
clusive presumption  of  law  the  presumption  can  not  be  contradicted. 
For  example,  all  residents  of  a  country  are  conclusively  presumed  to 
know  its  laws.  This  presumption  is  in  force  in  the  practice  of 
courts-martial  so  far  as  concerns  offenses  that  constitute  civil  crimes. 
(As  to  the  modification  of  the  rule  as  regards  knowledge  of  the 
Articles  of  War  in  case  of  recruits,  see  par.  282 ;  as  to  intent,  par  281 ; 
as  to  ignorance  of  law,  par.  282.)  In  case  of  a  disputable  presumption 
of  law,  the  presumption  can  be  contradicted.  For  example,  it  is 
presumed  that  a  sane  person  intends  the  natural  and  probable  conse- 
quences of  his  acts ;  a  person  is  presumed  to  be  innocent  until  proven 
guilty ;  all  persons  are  presumed  to  be  sane ;  persons  acting  as  public 
officers  are  presumed  to  be  legally  in  office  and  to  properly  perform 
their  duties;  and  malice  is  presumed  from  the  use  of  a  deadly 
weapon.    Evidence  may  be  introduced  to  rebut  such  presumptions. 

278.  Presumptions  of  fact. — Presumptions  of  fact  are  nothing  more 
than  logical  inferences,  from  facts  already  proved,  as  to  the  existence 
of  other  facts.  This  kind  of  a  presumption  is  not  made  as  a  rule  of 
law  but  as  a  matter  of  human  reason.  All  evidence  in  a  case,  ex- 
cept that  which  directly  proves  the  allegations  in  the  specifications, 
leads  at  once  to  presumptions  of  fact.  Such  presumptions  are  the 
basis  of  all  circumstantial  evidence.  (See  par.  204.)  It  is  in  mak- 
ing such  presumptions  that  the  members  of  the  court  should  espe- 
cially exercise  their  common  sense  and  their  knowledge  of  human 
nature  and  the  ways  of  the  world.  Facts  in  evidence  showing  a 
motive  or  absence  of  motive  on  the  part  of  the  accused,  preparations 
or  the  absence  of  preparations  for  the  commission  of  crime,  a  failure 
to  account  for  suspicious  circumstances,  acts  showing  a  criminal  con- 
sciousness (as  concealment,  disguise,  or  flight),  the  suppression  of 
evidence,  the  possession  of  weapons  or  instruments  that  might  have 
been  used  in  the  commission  of  the  offense,  the  possession  soon  after 
larceny  or  embezzlement  of  the  articles  stolen  or  embezzled,  are  a 
proper  basis  for  presumptions  of  fact. 

Also  where  the  existence  at  one  time  of  a  certain  condition  or  state 
of  things  of  a  continuing  nature  is  shown,  the  general  presumption 
arises  that  such  condition  or  state  continues  to  exist,  until  the  con- 


EVIDENCE.  131 

trary  is  shown,  so  long  as  is  usual  with  conditions  or  things  of  that 
partiGular  nature.  For  example,  there  is  a  presumption  of  continu- 
ance as  to  one's  residence,  until  a  change  is  shown,  also  that  one 
holding  an  office  continues  to  hold  it  until  the  end  of  the  term  for 
which  appointed  or  elected  and  that  personal  habits  have  not 
changed.  There  is  a  presumption  of  fact  from  the  regular  course 
of  business  in  the  Post  Office  Department  that  a  letter  when  properly 
deposited  in  a  post-office  box  or  in  the  place  in  which  letters  for  mail- 
ing are  usually  deposited,  postage  prepaid,  is  received  by  the  ad- 
dressee. The  presumption  with  regard  to  the  delivery  of  letters 
duly  posted  has  been  extended  and  applied  to  the  delivery  of  tele- 
grams deposited  with  a  telegraph  company  for  transmission;  but 
delivery  of  the  message  to  the  telegraph  company  must  of  course 
be  shown.  There  is  also  a  presumption  of  fact  that  persons  of  the 
same  name  are  the  same  person.  The  strength  of  this  presimiption 
will  of  course  depend  upon  how  common  the  name  is  and  other  cir- 
cumstances. 

279.  Prima  facie  evidence. — Prima  facie  evidence  is  that  which  suf- 
fices for  the  proof  of  a  particular  fact  until  contradicted  and  over- 
come by  other  evidence.  In  other  words,  prima  facie  evidence  justi- 
fies the  court  in  finding  the  facts  presumed,  but  in  view  of  the  doc- 
trine of  reasonable  doubt  that  always  inures  to  the  benefit  of  the 
accused  from  a  consideration  of  all  of  the  evidence  presented  the 
court  is  not  required  to  find  the  facts  presumed.  The  court  may 
decide,  for  instance,  that  the  prima  facie  evidence  presented  does 
not  outweigh  the  presumption  of  innocence. 

280.  Intent  in  connection  with  crimes. — In  respect  to  the  element  of 
intent,  crimes  are  distinguished  as  follows:  Those  in  which  a  dis- 
tinct and  specific  intent,  independent  of  the  mere  act,  is  essential 
to  constitute  the  offense,  as  murder,  larceny,  burglary,  desertion,  and 
mutiny ;  and  those  in  which  the  act  is  the  principal  feature,  the  exist- 
ence of  the  wrongful  intent  being  simply  inferable  therefrom,  as 
rape,  perjury,  sleeping  on  post,  drunkenness  on  duty,  neglect  of 
duty.  In  cases  of  the  former  class  the  characteristic  intent  must  be 
established  affirmatively  as  a  separate  fact;  in  the  latter  class  of 
cases  it  is  only  necessary  to  prove  the  unlawful  act,  for  every  man 
is  presumed  in  law  to  have  intended  to  do  what  he  actually  does, 
and  the  burden  of  proof  is  upon  him  to  show  the  contrary.  (Win- 
throp,  p.  475.) 

281.  Intent  in  military  cases. — ^Military  offenses  being  created  by 
statute,  the  peculiar  statutory  intent  described  in  the  article,  if 
there  be  one,  must  be  alleged  in  the  specification.  The  enlistments 
prohibited  in  A.  W.  54,  for  example,  must  have  been  "  knowingly  " 
made  in  order  to  constitute  an  offense  under  the  statute.  It  is  simi- 
larly essential  to  some  of  the  offenses  described  in  A.  W.  55,  56,  and 


132  MANUAL  FOR  COURTS-MARTIAL. 

57  that  they  be  "  knowingly  "  committed ;  offenses  under  A.  W.  83 
and  84  must  have  been  committed  "  willfully  "  or  "  through  neglect " ; 
an  officer  quitting  his  post  on  tender  of  resignation  must  do  so  "  with 
intent  to  absent  himself  permanently  therefrom"  to  be  triable  for 
the  offense  described  in  A.  W.  28;  and  an  officer  who  refuses  or 
"willfully  neglects"  to  deliver  an  offender  to  the  civil  authorities 
upon  application  duly  made  by  such  authorities  subjects  himself 
by  such  refusal  or  willful  neglect  to  the  penalties  set  forth  in 
A.  W.  74.  (Davis,  642.)  In  some  instances,  however,  as  in  the 
offenses  described  in  A.  W.  61  and  86,  no  statutory  intent  is  set 
forth  in  the  article,  and  none  need  be  alleged  in  the  specifica- 
tions. In  other  cases,  while  no  intent  is  embodied  in  the  article,  a 
particular  intent  is  necessary  to  the  completeness  of  the  offense,  and 
though  not  set  forth  in  the  specification  must  be  established  in  evi- 
dence. Such  is  the  case  with  respect  to  the  offense  of  desertion,  the 
intent  being  not  to  return.  But  whether  the  intent  that  is  presumed 
from  the  commission  of  an  unlawful  act  or  the  specific  one  that  must 
be  proved  raises  a  point  in  issue  the  accused  in  his  defense  may  prove 
there  was  actually  no  intent.  If  the  accused  can  substantiate  such 
a  defense,  he  must  be  acquitted  or  the  grade  of  the  offense  reduced, 
as,  for  instance,  from  assault  with  intent  to  kill  to  assault.  The  usual 
defenses  of  this  character. in  military  practice  are  ignorance  of  mili- 
tary law,  ignorance  of  fact,  drunkenness,  and  insanity. 

282.  Ignorance  of  law. — Every  person  is  usually  presumed  to  Imow 
the  provisions  of  Federal,  State,  and  municipal  law  applicable  to  the 
community  in  which  he  lives,  and  a  person  subject  to  military  law 
is  presumed,  in  addition  thereto,  to  know  the  statute  law  as  particu- 
larly applicable  to  the  Army,  as  well  as  Army  regulations,  the  differ- 
ent manuals,  orders,  and  circulars  issued  for  the  information  and 
government  of  the  Army.  This  really  means  that  on  grounds  of 
public  policy  a  person  is  responsible  whether  he  knows  the  law  or 
not.    His  ignorance  is  inmiaterial. 

An  exception  may  sometimes  be  made  where  enlisted  men  are 
charged  with  the  knowledge  of  the  Articles  of  War.  This  exception 
would  be  based  primarily  upon  the  fact  that  A.  W.  110  makes  it  one 
of  the  features  of  enlistments  into  the  military  service  that  certain 
of  the  "Articles  of  War  shall  be  read  to  every  enlisted  man  at  the 
time  of,  or  within  six  days  after,  his  enlistment."  A.  W.  109  enjoins 
that  he  shall  take  an  enlistment  oath  in  which,  among  other  things, 
he  swears  that  he  will  observe  and  obey  military  orders  "  according 
to  the  rules  and  Articles  of  War."  While  in  the  case  of  an  old  or 
reenlisted  soldier,  or  one  who  had  been  for  a  considerable  period  in 
the  service  and  had  had  a  sufficient  opportunity  to  inform  himself  as 
to  the  provisions  of  the  code,  a  failure  to  have  complied  with  the 
injunction  of  this  article  could  scarcely  constitute  a  defense,  such 


EVIDENCE.  133 

failure  might  perhaps  have  this  effect,  or  should  usually  at  least  act 
as  an  extenuation  in  the  case  of  a  recruit,  especially  one  imperfectly 
acquainted  with  the  English  language.  In  such  a  case  it  would  cer- 
tainly be  admissible  for  the  accused  to  show  the  fact,  and  if  the 
offense  charged  was  one  of  the  criminality  of  which  he  could  not, 
in  his  ignorance  of  military  law,  have  been  aware,  or  the  gravity  of 
which  he  could  not  have  appreciated,  the  omission  of  the  reading  of 
the  articles  upon  his  enlistment  would  properly  be  regarded  by  the 
court,  if  not  as  a  defense,  certainly  as  a  palliation  of  his  misconduct. 
(Winthrop,  p.  438.) 

283.  Ignorance  of  fact. — It  is  generally  laid  down  that  ignorance  of 
fact  excuses  crime.  But  this  must  be  an  honest  or  innocent  ignor- 
ance and  not  an  ignorance  which  is  the  result  of  carelessness  or  fault. 
The  theory,  of  course,  is  that  where  a  bona  fide  ignorance  of  fact 
exists  there  would  be  an  absence  of  the  requisite  wrongful  intent. 
The  general  rule  applies  equally  to  military  cases,  and  the  ignorance, 
to  constitute  a  defense  therein,  must  appear  not  to  have  proceeded 
from  any  want  of  vigilance,  or  from  failure  to  make  the  inquiries  or 
obtain  the  information  reasonably  called  for  by  the  obligations  and 
usages  of  the  service.  Thus  a  soldier  who  neglects  to  report  for 
guard  or  other  duty  because  ignorant  of  the  fact  that  he  has  been 
duly  detailed  therefor  is  not  guilty  of  a  breach  of  A.  W.  61  unless 
his  ignorance  is  a  result  of  his  own  neglect  or  wrongdoing  (Win- 
throp, p.  436) ;  and  if  the  soldier  should  disobey  an  order  given  to 
him  by  an  officer  in  civilian  clothing  without  the  officer  having  first 
stated  to  the  soldier  that  he  was  an  officer,  where  the  soldier  did  not 
know  that  he  was  an  officer  nor  have  reason  to  believe  that  he  was 
an  officer,  then  his  ignorance  would  be  excuse  for  his  act  of  diso- 
bedience which  might  otherwise  have  been  a  very  serious  offense.  Of 
course,  a  soldier  is  presumed — it  is  his  duty — ^to  know  the  officers  of 
his  command  where  reasonable  time  and  opportunity  after  joining 
the  command  are  shown  to  have  existed  for  this  purpose. 

[Note. — See  Insanity  of  accused,  par.  219.] 

284.  Evidence  of  desertion.— Absence  without  leave  is  usually  proved 
by  the  evidence  of  an  officer  or  noncommissioned  officer  of  the  com- 
pany of  the  accused  to  the  effect  that  he  was  absent  from  his  organi- 
zation without  authority  for  a  certain  period,  but  if  such  witnesses 
are  not  available  it  may  be  proved  by  the  entries  on  the  muster  roUs. 
In  making  the  latter  kind  of  proof,  that  portion  of  the  muster  roll 
relating  to  the  accused,  or  a  copy  of  it  certified  by  the  officer  having 
official  custody  thereof,  showing  the  accused  was  absent  without 
leave,  beginning  a  certain  date,  and  (if  such  is  the  case)  was  dropped 
as  a  deserter,  should  be  attached  to  the  proceedings  as  an  exhibit. 
But  the  muster  roll,  even  though  it  refers  to  the  accused  as  a  "  de- 
serter," is  not  complete  evidence  of  desertion;  it  is  evidence  only  of 


V 

134  MANUAL  FOR   COURTS- MARTIAL. 

absence  without  leave,  and  it  is  still  necessary  for  the  judge  advocate 
to  prove  an  intent  to  remain  permanently  absent;  that  is,  to  desert. 

The  condition  of  absence  without  leave  having  once  been  shown  to 
exist  will  be  presumed  to  continue  in  the  absence  of  evidence  to  the 
contrary  until  the  accused  came  again  under  military  control.  It  is 
therefore  necessary  to  prove  only  that  tie  accused  went  absent  with- 
out leave  a  certain  date  and  came  undi^r  military  control  a  certain, 
date.  During  the  intermediate  time  it  is  presumed  he  was  absent 
without  leave. 

If  the  condition  of  absence  without  leave  is  much  prolonged,  and 
there  is  no  satisfactory  explanation  of  it,  the  court  may  be  justified 
in  presuming  from  that  alone  an  intent  to  remain  permanently  ab- 
sent. The  presumption  of  such  intent  will  be  strengthened  by  such 
circumstances  as  that  the  accused  attempted  to  dispose  of  his  uni- 
form or  other  property ;  that  substantially  all  his  clothes  were  miss- 
ing from  hia  locker  when  his  absence  was  discovered ;  that  his  civilian 
clothes  were  missing;  that  he  attempted  to  board  a  train  that  took 
him  away  from  his  station ;  that  he  purchased  a  ticket  for  a  distant 
point  or  was  arrested  or  surrendered  at  a  considerable  distance  from 
his  station ;  that  while  absent  he  was  in  the  neighborhood  of  military 
posts  and  did  not  surrender  to  the  military  authorities;  that  he  was 
dissatisfied  in  his  company  or  with  the  military  service ;  that  he  had 
made  remarks  indicating  an  intention  to  desert  the  service;  that  he 
was  under  charges  or  had  escaped  from  confinement  at  the  time  he 
absented  himself;  that  just  previous  to  absenting  himself  he  stole 
or  took  without  authority  money,  civilian  clothes,  or  other  property 
that  would  assist  him  in  getting  away,  etc. 

On  the  other  hand,  such  incidents  are  not  always  inconsistent  with 
a  guilt  of  mere  absence  without  leave.  They  should  be  carefully 
weighed  by  the  court.  Previous  excellent  and  long  service,  the  fact 
that  none  of  the  property  of  the  accused  was  missing  from  his  locker, 
and  the  fact  that  he  was  under  the  influence  of  intoxicating  liquor 
or  drugs  when  he  absented  himself,  and  that  he  continued  for  some 
time  under  their  influence,  etc.,  are  incidents  going  to  show  there  was 
not  an  intent  to  remain  permanently  absent. 

The  fact  that  a  reward  has  been  paid  for  the  apprehension  of  the 
accused  as  a  deserter  neither  proves  nor  disproves  an  intent  to  desert. 
So  also  the  opinions  of  witnesses  as  to  whether  the  accused  intended 
to  desert  and  statements  from  them  that  the  accused  is  a  "  deserter  "  or 
"  deserted "  are  not  only  incompetent,  but  are  valueless  for  any 
purpose  to  prove  desertion. 

(a)  Statutory  rules  of  evidence. — A.  W.  28  provides  that  it  shall  be 
sufficient  proof  of  the  offense  of  desertion  by  an  officer  that,  having 
tendered  his  resignation  and  prior  to  due  notice  of  the  acceptance  of 
the  same,  he  quits  his  post  or  proper  duties  without  leave  and  with 
intent  to  absent  himself  permanently  therefrom.     And  similarly  in 


EVIDENCE.  '  135 

the  case  of  a  soldier,  A.  W.  29  provides  that  it  shall  be  sufficient  proof 
of  desertion  in  his  case  when  it  is  proved  that,  without  having  first 
received  a  regular  discharge,  he  again  enlists  in  the  Army  or  in  the 
militia  when  in  the  service  of  the  United  States,  or  in  the  Navy  or 
Marine  Corps  of  the  United  States,  or  in  any  foreign  army ;  and  shall 
be  further  proof  of  fraudulent  enlistment  where  the  enlistment  is  in 
one  of  the  forces  of  the  United  States  mentioned  a;bove. 

285.  Drunkenness  as  showing  absence  of  intent. — It  is  a  general  rule 
of  law  that  voluntary  drunkenness  is  not  an  excuse  for  crime  com- 
mitted in  that  condition.  But  the  question  whether  or  not  the  ac- 
cused was  drunk  at  the  time  of  the  commission  of  the  criminal  act 
may  be  material  as  going  to  indicate  what  species  or  kind  of  offense 
was  actually  committed.  Thus,  there  are  crimes  which  can  be  con- 
summated only  where  a  peculiar  and  distinctive  intent  or  a  conscious 
deliberation  or  premeditation  has  concurred  with  the  act  which  could 
not  well  be  possessed  or  entertained  by  an  intoxicated  person.  In 
such  cases  evidence  of  the  drunken  condition  of  the  party  at  the  time 
of  the  commission  of  the  alleged  crime  is  held  admissible,  not  to 
excuse  or  extenuate  the  act  as  such,  but  to  aid  in  determining  whether, 
in  view  of  the  state  of  his  mind,  such  act  amounted  to  the  specific 
crime  charged  or  which  of  two  or  more  crimes  similar  but  distin- 
guished in  degree  it  really  was  in  law.  Thus,  in  cases  of  such  offenses 
as  larceny,  robbery,  burglary,  and  passing  counterfeit  money,  which 
require  for  their  commission  a  certain,  specific  intent,  evidence  of 
drunkenness  is  admissible  as  indicating  whether,  the  offender  was 
capable  of  entertaining  this  intent  or  whether  his  act  was  anything 
more  than  a  mere  battery,  trespass,  or  mistake.  So,  upon  an  indict- 
ment for  murder,  testimony  as  to  the  drunkenness  of  the  accused  at 
the  time  of  the  killing  may  ordinarily  be  admitted  as  indicating  a 
mental  excitement,  confusion,  or  unconsciousness  incompatible  under 
the  circumstances  of  the  case  with  premeditation  or  a  deliberate  in- 
tent to  take  life  and  as  reducing  the  crime  to  the  grade  of  man- 
slaughter. On  the  other  hand,  where,  to  constitute  the  legal  crime, 
there  is  required  no  peculiar  intent — no  wrongful  intent  other  than 
that  inferable  from  the  act  itself — as  in  cases  of  assault  and  battery, 
rape,  or  arson,  evidence  that  the  offender  was  intoxicated  would, 
strictly,  not  be  admissible  in  defense.     (Winthrop,  p.  440.) 

Where  drunkenness  is  pleaded  as  an  excuse  for  crime  such  excuse 
should  be  received  with  caution.  Drunkenness  is  easily  simulated. 
It  is  sometimes  resorted  to  for  the  purpose  of  stimulating  the  nerves 
to  the  point  of  committing  the  act.  Where  premiditation  and  intent 
first  exist,  followed  by  voluntary  drunkenness  and  the  commission 
of  the  crime  during  such  state  of  drunkenness,  the  necessary  intent 
to  commit  the  crime  will  be  presumed,  whatever  the  state  of  drunk- 
enness at  the  time  of  its  commission  may  have  been. 


136  MANUAL   FOR   COURTS- MARTIAL. 

286.  Drunkenness  in  military  cases. — In  military  cases,  the  fact  of 
the  drunkenness  of  the  accused,  as  indicating  his  state  of  mind  at 
the  time  of  the  alleged  offense,  whether  it  may  be  considered  as 
properly  affecting  the  issue  to  be  tried,  or  only  the  measure  of 
punishment  to  be  adjudged  in  the  event  of  conviction,  is  in  practice 
always  admitted  in  evidence.  And  where  a  deliberate  purpose  or 
specific  intent  is  necessary  to  constitute  the  offense,  as  in  cases  of  dis- 
obedience of  orders  in  violation  of  A.  W.  64,  desertion,  mutiny, 
cowardice,  or  "fraud  in  violation  of  A.  W.  94,  the  drunkenness,  if 
clearly  shown  in  evidence  to  have  been  such  as  to  have  incapacitated 
the  party  from  entertaining  such  purpose  or  intent,  will  ordinarily 
be  treated  as  constituting  a  legal  defense  to  the  specific  act  charged. 

In  such  cases,  however,  if  the  drunken  act  has  involved  a  disorder 
or  neglect  of  duty  prejudicial  to  good  order  and  military  discipline 
the  accused  may  be  convicted  of  that  offense  under  A.  W.  96.  ( Win- 
throp,  p.  441.) 

287.  Proof  of  drunkenness. — Upon  a  trial  for  drunkenness  it  is  not 
essential  to  confine  the  testimony  to  a  description  of  the  conduct  and 
demeanor  of  the  accused,  but  it  is  admissible  to  ask  a  witness  directly 
if  the  accused  "  was  drunk,"  or  for  a  witness  to  state  that  the  accused 
"  was  drunk,"  on  the  occasion  or  under  the  circumstances  charged. 
Such  a  statement  is  not  viewed  by  the  authorities  as  of  the  class  of 
expressions  of  opinion  which  are  properly  ruled  out  on  objection 
unless  given  by  experts,  but  as  a  mere  statement  of  a  matter  of 
observation,  palpable  to  persons  in  general,  and  so,  proper  to  be 
given  by  any  witness  as  a  fact  in  his  knowledge.  It  is  preferahle 
that  all  witnesses  introduced  to  prove  drunkenness  should  describe 
the  conduct  and  demeanor  of  the  accused  in  addition  to  giving  their 
opinion  as  to  whether  the  accused  was  drunk, 

288.  Reasonable  doubt  and  burden  of  proof. — In  order  to  convict,  the 
court  must  be  satisfied,  beyond  a  reasonable  doubt,  that  the  accused 
is  guilty  as  charged. 

By  "  reasonable  doubt "  is  intended  not  fanciful  or  ingenius  doubt 
or  conjecture  but  substantial,  honest,  conscientious  doubt  suggested 
by  the  material  evidence  in  the  case.  It  is  an  honest,  substantial  mis- 
giving, generated  by  insufiiciency  of  proof.  It  is  not  a  captious 
doubt,  nor  a  doubt  suggested  by  the  ingenuity  of  counsel  or  jury 
and  unwarranted  by  the  testimony ;  nor  is  it  a  doubt  born  of  a  merci- 
ful inclination  to  permit  the  defendant  to  escape  conviction,  nor 
prompted  by  sympathy  for  him  or  those  connected  with  him.  The 
meaning  of  the  rule  is  that  the  proof  must  be  such  as  to  exclude  not 
every  hypothesis  or  possibility  of  innocence  but  any  fair  and  rational 
hypothesis  except  that  of  guilt;  what  is  required  being  not  an  abso- 
lute or  mathematical  but  a  moral  certainty.  A  court-martial  which 
acquits  because,  upon  the  evidence,  the  accused  may  possibly  be  inno- 


EVIDENCE.  137 

cent  falls  as  far  short  of  appreciating  the  proper  amount  of  proof 
required  in  a  criminal  trial  as  does  a  court  which  convicts  because 
the  accused  is  probably  guilty.     (Winthrop,  p.  476.) 

In  trials  before  courts-martial  the  prosecution  has  upon  it  the 
burden  of  proving  the  guilt  of  the  accused  beyond  a  reasonable  doubt, 
and,  whatever  the  defense  of  the  accused  may  be,  this  burden  never 
changes.  After  the  evidence  is  all  in  the  court  must  be  convinced 
beyond  a  reasonable  doubt  of  every  element  necessary  to  constitute 
the  offense  in  order  to  justify  it  in  convicting  the  accused  of  the 
offense  charged. 

In  collateral  issues  arising  in  the  course  of  the  trial  as  to  the  com- 
petency of  witnesses,  the  admissibility  of  testimony,  and  the  like,  the 
burden  of  proof  rests  upon  the  party  who  alleges  incompetency  or 
objects  to  the  admission  of  particular  testimony.     (Davis,  p.  267.) 

Section  IX. 

JUDICIAL  NOTICE. 

289.  Judicial  notice. — Courts  will  recognize  the  existence  and  truth 
of  certain  matters  bearing  upon  the  issue  before  them  of  their  own 
motion  and  without  requiring  the  production  of  evidence.  Such 
acceptance  is  known  as  "taking  judicial  notice"  of  them.  This  is 
done  as  to  all  matters  of  law  and  all  facts  which  are  so  notorious 
as  to  need  no  evidence.  To  the  former  class  belong  the  laws  which 
the  court  applies  in  the  decision  of  the  cases  before  it, '  including 
the  Constitution,  laws,  and  treaties  of  the  United  States,  those  of 
the  State  in  which  it  sits,  the  common  law,  and  the  law  of  nations. 
They  also  take  notice  of  the  great  seal  of  the  United  States,  those 
of  the  several  States,  the  seal  of  courts  of  record,  notaries  public, 
etc.  Under  the  latter  head  they  will  take  judicial  notice  of  the 
ordinary  divisions  of  time,  of  calendar  and  lunar  months,  of  weeks 
and  days,  and  of  the  hours  of  the  day ;  of  astronomical  and  physical 
facts;  of  the  laws  of  nature,  including  their  ordinary  operations 
and  consequences;  of  the  Government  of  the  United  States  and  those 
of  the  several  States  and  their  heads;  of  war  and  peace;  and  of  the 
great  facts  of  history  as  recorded  in  the  works  of  writers  of  stand- 
ard authority.  So  in  addition  all  courts-martial  will  take  judicial 
notice  of  the  organization  of  the  Army,  the  statutes  relating  to  the 
Army,  the  Army  Regulations,  the  contents  of  the  several  manuals 
issued,  the  existence  and  situation  of  military  departments,  reserva- 
tions, and  posts,  and  the  stations  of  troops  aa  published  to  the  Army, 
the  fact  that  an  officer  belongs  to  a  certain  organization,  etc.  Gen- 
eral and  special  orders,  general  court-martial  orders,  and  bulletins 
of  the  War  Department  and  the  headquarters  of  the  several  military 
departments  may  ordinarily  be  proved  by  printed  official  copies  in 


138  MANUAL   FOR   COURTS-MARTIAL. 

the  usual  form.  A  court-martial  will  in  general  properly  take 
judicial  notice  of  the  printed  order  as  genuine  and  correct.  A  court- 
martial,  however,  should  not  in  general  accept  in  evidence,  if  objected 
to,  a  printed  or  written  order  which  has  not  been  made  public  to 
the  Army  without  some  proof  of  its  genuineness  and  official  char- 
acter. Special  and  summary  courts  will  take  judicial  notice  of  the 
published  orders  of  the  regimental  and  post  commander.  Where  the 
price  of  an  article  furnished  by  the  Government  is  published  to  the 
Army  in  orders,  bulletins,  or  price  lists,  it  will  not  be  necessary  to 
prove  the  price,  as  the  court  will  take  judicial  notice  of  it.  It  is 
proper,  although  not  necessary,  for  the  judge  advocate  to  state  to 
the  court  that  the  price  as  set  out  in  the  charges  is  the  same  as  that 
fixed  by  the  order,  bulletin,  or  price  list.  If  the  court  is  uncertain 
as  to  the  fact  which  it  is  called  upon  to  notice  judicially,  it  may 
refer  to  any  person  or  to  any  document  or  book  of  reference  to 
satisfy  itself  with  regard  thereto,  or  it  may  refuse  to  take  judicial 
notice  of  the  fact  unless  and  until  the  party  calling  upon  it  to  do  so 
shall  produce  such  document  or  book  of  reference. 


CHAPTER  XII. 

COURTS-MARTIAL— CONCLUDING  INCIDENTS  OF  THE 

TRIAL. 


Section  I:  Statements  and  arguments:  Page. 

290.  Scope  of  statement 140 

291.  Freedom  of  expression 140 

292.  Admissions 140 

293.  Arguments 141 

Section  II:  Findings: 

294 .  Voting * 141 

295.  Majority  necessary  to  convict — ^Exception 141 

296.  Reasonable  doubt 141 

297.  General  principles  controlling  findings 141 

298.  Guilty  of  a  lesser  included  offense 142 

299 .  Guilty  with  exceptions  and  substitutions 142 

300.  Substitution  of  general  for  specific  article  in  the  charge 143 

301.  Joint  charges 143 

302.  Reasons  for  findings 143 

303.  Findings  where  no  criminality  is  involved 143 

304.  Findings  under  charge  of  drunkenness 143 

305.  Recording  of  finding  or  sentence  by  reporter 144 

Section  III:  Pi'evious  convictions: 

306.  Procedure  as  to  previous  convictions 144 

307.  Character  of  previous  convictions 144 

Section  IV:  Sentences: 

308.  Voting 145 

309 .  Mandatory  and  discretionary  punishments 145 

310 .  Sentences  for  officers 146 

311 .  Sentences  for  soldiers 146 

312.  Dismissal 146 

313.  Loss  of  rank 146 

314.  Suspension  from  rank 147 

315.  Suspension  from  command 147 

316.  Suspension  from  duty 147 

317.  Fine 147 

318.  Reprimand 147 

319.  Confinement  to  limits  of  post  or  reservation 147 

320.  Dishonorable  discharge 148 

321.  Suspension  of  dishonorable  discharge .• 148 

322.  Confinement  at  hard  labor 148 

323.  Hard  labor  without  confinement 148 

324.  Forfeiture  of  pay  and  allowances 148 

325.  Courts  can  not  stop  pay  in  favor  of  Government  or  an  individual 148 

326.  Forfeiture  of  deposits 149 

139 


140  MANUAL  FOR   COUETS-MAETIAL. 

Section  IV  :  Sentences — Continued.  Page. 

327.  Reduction  of  noncommissioned  officer 149 

328.  Detention  of  pay 1 149 

329.  When  reward  for  apprehending  deserter  not  to  be  stopped 149 

330.  Sentences  of  general  prisoners 149 

331.  Reasons  for  sentence 149 

332.  Recommendations  to   clemency 149 

332a.  Report  to  commanding  officer  of  result  of  trial — when  made 150 


Section  I. 
STATEMENTS  AND  ARGUMENTS. 

290.  Scope  of  statement. — After  the  introduction  of  evidence  has  been 
completed  the  accused,  personally  or  by  counsel,  and  whether  or  not 
he  has  testified  as  a  witness,  may  make  an  unsworn  verbal  or  written 
statement  as  to  the  case.  If  the  statement  is  in  writing  it  should  be 
signed  by  the  accused,  or  by  counsel  in  his  behalf,  and  appended  to  the 
record.  The  statement  may  consist  of  a  brief  summary  or  version  of 
the  evidence,  with  such  explanation  or  allegation  of  motive,  excuse, 
matter  of  extenuation,  etc.,  as  the  party  may  desire  to  offer,  or  it  may 
embrace,  with  the  facts,  a  presentation  also  of  the  law  of  the  case 
and  an  argument  both  upon  the  facts  and  the  law.  (Winthrop,  p. 
450.)  Such  statement  is  not  testimony  and,  therefore,  is  not  subject 
to  cross-examination,  but  as  a  personal  defense  or  argument,  how- 
ever, it  may  and  properly  should  be  taken  into  consideration  by  the 
court.    (Digest,  p.  506  V,  H,  1.) 

291.  Preedom  of  expression. — A  large  freedom  of  expression  in  his 
statement  to  the  court  is  allowable  to  an  accused,  especially  in  his 
comments  upon  the  evidence.  So,  an  accused  may  be  permitted  to 
reflect  within  reasonable  limits  upon  the  apparent  animus  of  his 
accuser  or  prosecutor,  though  a  superior  officer  and  of  high  rank. 
But  an  attack  upon  such  a  superior  of  a  personal  character  and  not 
apposite  to  the  facts  of  the  case  is  not  legitimate ;  nor  is  language  of 
marked  disrespect  employed  toward  the  court.  Matter  of  this  de- 
scription may  indeed  be  required  by  the  court  to  be  omitted  by  the 
accused  as  a  condition  to  his  continuing  his  address  or  filing  it  with 
the  record.     (Digest,  p.  506,  V,  H,  3.) 

292.  Admissions. — While  the  statement  proper  can  not,  as  previously 
stated,  be  regarded  as  evidence,  and  the  accused  is  not  in  general 
to  be  held  bound  by  the  argumentative  declarations  it  contains,  yet 
if  he  clearly  and  unequivocally  admits  in  his  statement  certain  facts 
material  to  the  prosecution,  such  may  properly  be  viewed  by  the 
court  and  reviewing  authority  in  the  case.  Such  facts  must,  of  course, 
not  be  inconsistent  with  the  plea.    But  admissions  of  this  sort  can 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  THE  TRIAL.    141 

scarcely  in  any  event  constitute  a  sufficient  basis  for  a  conviction  un- 
less supported  by  material  testimony  on  the  trial. 

[Note. — See  Chap.  IX,  par.  154,  as  to  procedure  where,  after  a  plea  of  guilty, 
tlie  accused  makes  a  statement  inconsistent  with  his  plea.] 

293.  Arguments. — After  the  accused  has  made  a  statement,  if  any, 
arguments  may  be  presented  to  the  court  by  the  judge  advocate,  the 
accused,  and  his  counsel.  The  judge  advocate  has  the  right  to  make 
the  opening  and  closing  argument,  but  the  court,  in  its  discretion, 
may  permit  the  defense  to  answer  any  new  matter  in  the  closing 
argument  of  the  judge  advocate. 

Section  II. 

FINDINGS. 

294.  Voting. — After  the  statements  and  arguments,  if  any  are  made, 
have  been  concluded  the  court  will  proceed  to  its  judgment  which 
consists  of  the  findings  and  sentence.  Members  of  a  general  or  spe- 
cial court-martial,  in  giving  their  votes,  shall  begin  with  the  junior 
in  rank.  (A.  W.  31.)  The  votes  of  the  members  must  be  based  upon 
and  governed  by  the  testimony  in  the  case  considered  in  connection 
with  the  plea.  The  charges  and  specifications  are  voted  upon  in  the 
same  order  that  is  followed  in  arraigning  the  accused,  the  first  speci- 
fication to  the  first  charge  being  voted  upon,  then  the  second,  third, 
and  thereafter  in  order,  followed  by  a  vote  upon  the  charge  itself; 
and  so  on  with  the  other  charges.  A  tie  vote  on  a  finding  is  a  finding 
of  not  guilty. 

[Note. — For  refusal  to  vote  a  member  is  chargeable  under  A.  W.  96,  see 
Chap.  VII,  par.  90.] 

295.  Majority  necessary  to  convict — Exception. — ^All  convictions 
whether  by  general  or  special  court-martial  may  be  determined  by  a 
majority  of  the  members  present,  except  that  no  person  shall  by 
general  court-martial  be  convicted  of  an  offense  for  which  the  death 
penalty  is  made  mandatory  by  law,  unless  by  the  concurrence  of  two- 
thirds  of  the  members  of  said  court-martial  and  for  an  offense  in  the 
Articles  of  War  expressly  made  punishable  by  death.     (A.  W.  43.) 

296.  Reasonable  doubt. — ^Where  issues  arise  during  the  progress  of  a 
trial,  as  for  instance  as  to  the  competency  of  members  or  witnesses, 
and  evidence  is  taken,  the  question  at  issue  is  determined  by  pre- 
ponderance of  evidence;  but  in  order  to  convict  of  the  charges  and 
specifications  or  any  part  of  them  the  court  must  be  satisfied  of  the 
guilt  of  the  accused  beyond  a  reasonable  doubt. 

[Note. — For  description  of  reasonable  doubt,  see  Chap.  XI,  par.  288.]  • 

297.  General  principles  controlling  findings. — The  finding  on  the 
charge  should  be  supported  by  the  finding  on  the  specification  (or 
specifications),  and  the  two  findings  should  be  consistent  with  each 


142  MANUAL  FOE  COURTS-MARTIAL. 

other.  A  finding  of  guilty  on  the  charge  would  be  quite  inconsistent 
with  a  finding  of  not  guilty  on  the  specification.  So  a  finding  of 
guilty  on  a  well-pleaded  specification  apposite  to  the  charge,  followed 
by  a  finding  of  not  guilty  either  of  the  article  charged  or  of  some  other 
proper  article,  would  be  an  incongruous  verdict.  No  matter  how 
many  specifications  there  may  be,  it  requires  a  finding  of  guilty  on 
but  one  specification  (apposite  to  the  charge)  to  support  a  similar 
finding  upon  the  charge.  (Digest,  p.  536,  XII,  A.  2)  Evidence  cun 
not  be  taken  after  a  finding  has  been  reached. 

298.  Guilty  of  a  lesser  included  offense. — If  the  evidence  proves  the 
commission  of  an  offense  which  is  included  in  that  with  which  the 
accused  is  charged  the  court  may  except  words  of  the  specification, 
and  if  necessary  substitute  others  instead,  pronounce  the  innocence 
and  guilt  of  the  excepted  and  substituted  words,  respectively,  and 
then  find  the  accused  either  guilty  of  the  charge  or  not  guilty  of  the 
charge,  but  guilty  of  a  violation  of  another  proper  article  of  war  as 
the  finding  on  the  specification  may  require.  Of  this  form  of  verdict 
the  most  familiar  is  the  finding  of  guilty  of  absence  without  leave 
imder  a  charge  of  desertion.  In  such  a  case  the  court  should  find  as 
follows  where  the  charges  are  in  the  usual  form : 

Of  the  specification,  guilty  except  the  words  "  desert "  and  "  in 
desertion  "  substituting  therefor  respectively  the  words  "  absent  him- 
self without  leave  from  "  and  "  without  leave,"  of  the  excepted  words 
not  guilty,  of  the  substituted  words  guilty. 

Of  the  charge,  not  guilty  but  guilty  of  violation  of  the  sixty-first 

article  of  war. 

[Note. — For  a  discussion  of  the  incidental  power  of  appointing  and  confirm- 
ing autliorities  to  approve  and  confirm  a  finding  of  guilty  of  a  lesser  included 
offense  see  Chap.  XVI,  pars.  377  and  379.] 

299.  Guilty  with  exceptions  and  substitutions. — It  is  a  peculiarity  of  the 
finding  at  military  law  that  a  court-martial,  where  of  opinion  that 
any  portion  of  the  allegations  in  a  specification  is  not  proved,  is 
authorized  to  find  the  accused  guilty  of  a  part  of  a  specification  only, 
excepting  the  remainder;  or,  in  finding  him  guilty  of  the  whole  (or 
any  part) ,  to  substitute  correct  words  or  allegations  in  the  place  of 
such  as  are  shown  by  the  evidence  to  be  incorrect.  And  provided  the 
exceptions  or  substitutions  leave  the  specification  still  appropriate  to 
the  charge  and  legally  sufficient  thereunder,  the  court  may  then  prop- 
erly find  the  accused  guilty  of  the  charge  in  the  usual  manner.  Fa- 
miliar instances  of  the  exercise  of  the  authority  to  except  and  sub- 
stitute in  a  finding  of  guilty  occur  in  cases  where,  in  the  specifica- 
tion, the  name  or  rank  of  the  accused  or  some  other  person  is  errone- 
ously designated,  or  there  is  an  erroneous  averment  of  time  or  place, 
or  a  mistaken  date,  or  an  incorrect  statement  as  to  amount,  quantity, 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  THE  TRIAL.    143 

quality,  or  other  particular,  of  funds  or  other  property.  But  the 
authority  to  find  guilty  of  a  lesser  included  offense,  or  otherwise  to 
make  exceptions  and  substitutions  in  the  findings,  does  not  justify  the 
conviction  of  the  accused  of  an  offense  entirely  separate  and  distinct 
in  its  nature  from  that  charged,  thus  "  selling "  and  "  through  neg- 
lect losing  "  property  are  separate  offenses  though  each  is  a  violation 
of  A.  W.  84. 

300.  Substitution  of  general  for  specific  article  in  the  charge. — Another 
legal  and  now  common  form  of  finding  is  where  an  accused  is  charged 
with  an  offense,  made  punishable  by  an  article  of  war  other  than  the 
ninety-sixth  (as  for  instance  the  ninety-fifth  article),  and  the  court 
is  of  the  opinion  that,  while  the  material  allegations  in  the  specifi- 
cation are  proved,  they  do  not  fully  sustain  the  charge  as  laid,  but 
do  clearly  constitute  a  violation  of  the  ninety-sixth  article  of  war. 
In  this  case  the  accused  may  properly  be  found  guilty  of  the  speci- 
fication and  not  guilty  of  the  charge,  but  guilty  of  "  violation  of  the 
ninety-sixth  article  of  war."  It  should  be  remembered,  however,  that 
the  court  can  not  in  its  findings  legally  substitute  the  ninety-sixth 
article  of  war  for  any  other,  unless  the  proof  fails  to  substantiate 
ihe  specification  under  the  original  charge. 

301.  Joint  charges. — Where  joint  charges  are  tried,  if  one  or  more  of 
the  accused  persons  is  acquitted  and  one  or  more  is  convicted,  the 
findings  should  by  proper  exceptions  eliminate  the  words  showing 
that  the  acquitted  person  or  persons  was  a  joint  participant  in  the 
offense,  and  should  expressly  acquit  those  persons  whom  it  finds  not 
guilty. 

302.  Reasons  for  findings. — A  court-martial  may  spread  upon  the 
record  of  trial  a  brief  statement  of  reasons  upon  which  its  findings 
are  based.  In  many  cases  such  a  statement  will  aid  the  reviewing 
authority  in  determining  the  action  to  be  taken  by  him. 

303.  Findings  where  no  criminality  is  involved. — A  finding  of  "  guilty 
without  criminality  "  is  not  consistent  and  should  not  be  made.  If 
the  accused  is  found  to  have  committed  the  act  and  done  the  things 
alleged  in  the  specification,  but  without  the  guilty  intent  or  knowl- 
edge essential  to  constitute  the  offense,  the  court  should,  as  to  the 
specification,  find  the  accused  "  not  guilty." 

304.  Findings  under  charge  of  drunkenness. — A  person  "  under  the  in- 
fluence of  intoxicating  liquor  "  or  "  intoxicated  "  is  "  drunk."  There- 
fore, under  the  eighty-fifth  article  of  war,  in  charging  that  the 
accused  was  found  "  drunk  "  the  word  "  drunk  "  will  be  used.  So  in 
charging  other  offenses  involving  drunkenness  no  other  word  or 
phrase  will  be  used  as  a  substitute  for  "  drunk."  Under  such  charges 
the  court  should  not  in  its  findings  substitute  such  phrases  as  "  under 
the  influence  of  intoxicating  liquor  "  and  "  intoxicated  "  for  "  drunk." 


144  MANUAL  FOR  COURTS-MARTIAL. 

305.  Recording  of  finding  or  sentence  by  reporter. — A  court-martial, 
member  of  court,  or  judge  advocate  can  not,  of  course,  lawfully  com- 
municate to  a  reporter  or  clerk,  by  allowing  him  to  record  the  same 
or  otherwise,  the  finding  or  sentence  of  the  court.  But  the  fact  that 
the  finding  or  sentence  or  both  may  have  been  made  known  to  a  re- 
porter or  clerk  can  not  affect  the  legality  of  its  proceedings  or 
sentence.     (Digest,  p.  558,  XIV,  E,  7,  g.) 

Section  III. 
PREVIOUS  CONVICTIONS. 

306.  Procedure  as  to  previous  convictions. — Courts-martial  will,  in  the 
case  of  a  soldier,  after  a  finding  of  guilty,  be  opened  for  the  purpose 
of  ascertaining  whether  evidence  of  previous  convictions  has  been 
referred  to  the  court  by  the  appointing  authority,  and  if  so,  of  re- 
ceiving it.  The  introduction  and  use  of  evidence  of  previous  con- 
victions will  be  limited  to  that  pertaining  to  convictions  by  courts- 
martial  of  an  offense  or  offenses  commtted  by  the  accused  during 
the  current  enlistment  and  within  one  year  next  preceding  the  com- 
mission of  any  of  the  offenses  of  which  he  stands  convicted  before 
the  court.  The^e  convictions  may  be  proved  only  by  the  records  of 
previous  trials  and  convictions  or  by  duly  authenticated  copies  of 
such  records,  or  by  duly  authenticated  copies  of  orders  promulgating 
such  trials  and  convictions.  A  copy  of  such  a  record  or  order  pro- 
mulgating such  a  trial  and  conviction  is  duly  authenticated  when 
certified  as  an  official  copy  by  the  commander  having  custody  of  the 
original,  or  by  his  adjutant,  or  by  the  impressed  stamp  of  his  office 
or  headquarters.  The  proper  evidence  of  a  previous  conviction 
by  summary  court  is  a  copy  of  the  summary  court  record  furnished 
to  the  company  or  other  commander  or  one  authenticated  as  an 
official  copy  by  the  signature  of  the  commanding  officer  or  his 
adjutant,  or  by  the  impressed  stamp  of  the  headquarters  having  cus- 
tody of  the  original  record  and  furnished  for  the  purpose.  In  a  trial 
by  general  court-martial,  when  the  proof  is  the  copy  furnished  to  the 
company  or  other  commander  it  will  be  returned  to  him  and  a  cer- 
tified copy  of  it  attached  to  the  record.  The  evidence  of  previous 
convictions  referred  to  a  special  or  summary  court  will,  after  trial,  be 
returned  to  the  appointing  authority  and  will,  after  action  by  the 
latter  on  the  case,  be  returned  to  the  company  or  other  command  to 
which  it  pertains.     {C.  M.  C.  J/.,  No.  1.) 

307.  Character  of  previous  convictions. — By  "  previous  conviction  "  is 
meant  a  previous  conviction  by  a  court-martial  where  the  sentence 
has  been  approved  by  competent  authority.  A  previous  conviction 
by  a  civil  or  naval  court,  an  acquittal,  or  an  approved  conviction  by  a 
court-martial  that  has  been  set  aside  as  illegal  is  not  a  "  previous  con- 
viction" as  the  phrase  is  used  here.     Previous  convictions  are  not 


COUHTS-MARTIAL — CONCLUDING  INCIDENTS  OF  THE  TRIAL.    145 

limited  to  those  for-  offenses  similar  to  the  one  for  which  the  accused 
is  on  trial.  The  object  is  to  see  if  the  accused  is  an  old  offender  and 
therefore  less  entitled  to  leniency  than  if  on  trial  for  his  first  offense. 
This  information  might  not  be  fully  obtained  if  evidence  of  previous 
convictions  of  similar  offenses  only  were  laid  before  the  court.  The 
consideration  of  previous  convictions  has  no  bearing  upon  the  ques- 
tion of  guilt  of  the  particular  charge  on  trial,  but  only  upon  the 
amount  and  kind  of  punishment  to  be  awarded.  They  are  not  con- 
sidered imtil  after  the  findings  have  been  reached. 

Section  IV. 
SENTENCES. 

308.  Voting. — After  the  findings  have  been  determined  upon  and  re- 
sulted in  a  conviction  upon  the  charge  or  some  one  at  least  of  the 
charges  when  there  are  several,  or  in  a  conviction  of  a  lesser  offense 
included  in  the  one  charged,  and,  in  the  case  of  a  soldier,  the  evi- 
dence of  previous  convictions,  if  any,  have  been  introduced,  the  court 
proceeds  to  adjudge  the  sentence.  In  voting,  the  thirty-first  article 
of  war  requires  that  the  junior  in  rank  shall  vote  first,  and  the  votes 
are  therefore  taken  in  the  inverse  order  of  rank.  Those  members 
desiring  to  propose  a  sentence  usually  write  it  on  a  slip  of  paper  and 
hand  it  to  the  president.  The  president  reads  the  proposed  sentences 
to  the  court  and  the  members  vote  on  them  in  order,  beginning  with 
the  lightest,  until  a  majority  present,  or,  in  cases  where  the  death 
penalty  is  mandatory,  two-thirds  of  the  members  of  the  general 
court-martial  agree  upon  a  sentence.  (See  A.  W.  43.)  Even  in  a 
case  where  the  punishment  is  fixed,  as,  for  instance,  under  the  eighty- 
second  article  where  the  punishment  for  lurking  or  acting  as  a  spy 
is  death,  and  under  the  ninety-fifth  article  where  the  punishment  is 
dismissal,  the  members  must  by  vote  impose  this  punishment.  All 
the  members  of  the  court,  those  who  voted  for  an  acquittal  equally 
with  those  who  voted  for  conviction,  should  vote  for  some  sentence. 

309.  Mandatory  and  discretionary  punishments. — ^Punishment,  under 
the  Articles  of  War,  is  either  mandatory,  that  is,  a  certain  punish- 
ment is  prescribed  by  the  terms  of  the  article,  or  is  discretionary, 
that  is,  it  is  left  to  the  discretion  of  the  court-martial.  If  the 
punishment  is  prescribed  in  the  article  violated,  any  other  punish- 
ment than  that  prescribed  is  illegal.  For  instance  the  punishment 
imposed  by  a  court  for  a  violation  of  the  ninety-fifth  article  of  war 
must  be  dismissal,  it  can  not  be  less  and  it  can  not  be  more,  though  a 
conviction  under  other  articles  at  the  same  trial  might  authorize  the 
inclusion  of  other  f ormts  of  punishment  in  the  sentence.  Before  pro- 
nouncing sentence,  the  court  should,  therefore,  examine  the  article 

91487°— 17 11 


146  MANUAL  FOE  COUBTS-MARTIAL. 

violated  to  see  what  punishment  may  be  legally  awarded.  As  to 
discretionary  punishments  the  President,  by  virtue  of  an  act  of 
Congress,  has  by  executive  order  prescribed  maximum  limits  of 
punishment  for  certain  offenses  when  committed  by  soldiers.  The 
latest  order  is  found  in  Chapter  XIII,  par.  349.  If  the  punish- 
ment is  discretionary  the  court,  before  proceeding  to  award  a  punish- 
ment, will  ascertain  whether  a  limit  is  fixed  in  the  order,  and  if 
no  limit  is  fixed  the  court  may  impose  any  punishment  that  is  sanc- 
tioned by  the  custom  of  the  service. 

[Note. — See  mandatory  and  discretionary  punishment,  Chap.  IV,  Sec.  II, 
par.  40.] 

310.  Sentences  for  officers. — For  officers  the  legal  sentences  by  court- 
martial,  depending  on  the  nature  of  the  offense,  include  death,  dis- 
missal with  confinement  at  hard  labor,  dismissal,  loss  of  rank,  sus- 
pension from  rank,  command,  or  duty,  with  or  without  loss  of  pay 
or  part  of  pay,  fine  or  forfeiture  of  pay,  confinement  to  limits  of  post 
or  reservation,  reprimand,  and  admonition. 

[Note. — Immediately  upon  the  promulgation  of  any  sentence  of  court-martial 
in  the  case  of  a  commissioned  officer  involving  suspension  from  rank  and  com- 
mand, confinement,  reduction  in  lineal  rank,  or  any  other  material  change  in 
the  officer's  status,  the  commander  who  has  authority  to  approve  such  sentence 
and  carry  it  into  execution  will  advise  The  Adjutant  General  of  the  Army,  by 
telegraph,  of  the  sentence  imposed  as  approved  or  mitigated  and  the  date  of 
promulgation  thereof.     (G.  O.  No.  6,  War  Dept,  1910.).] 

311.  Sentences  for  soldiers. — For  soldiers,  the  legal  sentences,  depend- 
ing on  the  nature  of  the  offense  and  the  jurisdiction  of  the  court, 
include  death,  dishonorable  discharge,  confinement  at  hard  labor,  hard 
labor  without  confinement,  forfeiture  of  pay,  detention  of  pay,  and 
reprimand ;  for  noncommissioned  officers,  reduction  to  the  ranks ;  for 
privates,  first  class,  reduction  to  second-class  privates  and  privates; 
for  cooks  of  the  Quartermaster  Corps  (where  sentence  is  imposed 
by  a  general  court-martial)  reduction  to  the  ranks;  and  for  those 
holding  a  certificate  of  eligibility  to  promotion,  deprivation  of  all 
rights  and  privileges  arising  from  such  a  certificate. 

[Note. — 1.  Confinement  without  hard  labor  should  never  be  imposed.  2.  For 
forms  for  sentences,  see  Appendix  9.] 

312.  Dismissal. — ^Under  the  article  of  war  which  prescribes  the  sen- 
tence of  dismissal  upon  conviction,  no  punishment  in  addition  to 
dismissal  is  authorized.  Therefore  no  pimishment  in  addition  to  dis- 
missal can  legally  be  imposed  upon  conviction  of  an  offense  under  the 
ninety-fifth  article  of  war  alone. 

[Note. — For  statement  by  whom  a  sentence  of  dismissal  or  dishonorable  dis- 
charge imposed  by  National  Guard  courts-martial,  not  in  the  service  of  the 
United  States,  must  be  approved,  see  sec.  107,  act  of  June  3,  1916 ;  39  Stat.,  166 ; 
Appendix  2,  post.] 

313.  Loss  of  rank. — Loss  of  rank  is  accomplished  by  a  sentence  direct- 
ing that  an  accused  be  placed  at  the  foot  of  the  list  of  officers  of  his 


COURTS-MARTIAL COITCLUDING  INCIDENTS  OF  THE  TRIAL.    147 

grade  and  arm,  or  that  he  remain  at  the  foot  of  such  list  until  he  shall 
have  lost  a  certain  number  of  files,  or  for  a  certain  length  of  time,  or 
that  he  lose  a  certain  number  of  files,  or  that  his  name  shall  appear 
in  the  lineal  list  of  officers  of  his  arm  next  below  that  of  a  certain 
officer  named. 

314.  Suspension  from  rank. — Suspension  from  rank  includes  suspen- 
sion from  command.  It  deprives  an  officer  of  the  right  to  promotion 
to  a  vacancy  in  a  higher  grade  occurring  pending  the  term  of  sus- 
pension and  which  he  would  have  been  entitled  to  receive  by  virtue 
of  seniority  had  he  not  been  suspended.  It  does  not,  however,  de- 
prive the  officer  of  the  right  to  rise  in  files  in  his  grade.  Suspension 
from  rank  also  makes  an  officer  ineligible  to  sit  upon  a  court-martial, 
court  of  inquiry,  or  military  board,  and  deprives  him  of  privileges 
that  depend  on  rank,  such  as  the  selection  of  quarters. 

315.  Suspension  from  command. — This  punishment  merely  deprives 
the  officer  of  authority  to  exercise  his  proper  military  command  and, 
consequently,  of  his  right  to  give  orders  to  or  exact  obedience  from 
his  juniors  or  perform  any  other  duties  that  go  with  the  exercise  of 
command.  It  does  not  affect  his  right  of  promotion  or  any  military 
rights  or  privileges  other  than  those  attaching  to  command.  It  is 
therefore  not  an  appropriate  punishment  for  a  staff  officer. 

316.  Suspension  from  duty. — Suspension  from  duty  is  practically 
equivalent  to  a  sentence  of  suspension  from  conmiand.  It  is  appro- 
priate in  the  case  of  an  officer  holding  a  position  involving  the  per- 
formance of  administrative  duty,  as  distinguished  from  actual  mili- 
tary command,  as  in  the  case  of  officers  of  the  staff. 

317.  Fine. — A  fine  is  distinguished  from  a  forfeiture  in  that  it  is  a 
punishment  which  imposes  a  pecuniary  liability  in  general,  not  neces- 
sarily affecting  pay.  It  is  especially  recognized  as  a  form  of  punish- 
ment in  the  ninety-fourth  article  of  war.  It  is  usually  accompanied 
in  the  sentence  by  a  provision,  in  order  to  enforce  collection,  that  the 
person  fined  shall  be  imprisoned  until  the  fine  is  paid  or  until  a  fixed 
portion  of  time  considered  as  an  equivalent  punishment  has  expired. 
Fines  as  well  as  forfeitures  accrue  to  the  United  States  and  can  not 
be  imposed  or  collected  for  the  benefit  of  any  individual. 

318.  Reprimand. — This  sentence  is  usually  awarded  to  officers  only 
and  for  minor  offenses  where  a  mild  penalty  is  to  be  inflicted.  In 
general  it  is  not  appropriate  for  enlisted  men,  but  is  authorized  in  the 
cases  of  noncommissioned  officers.  The  proper  authority  to  admin- 
ister the  reprimand  is  the  reviewing  authority,  and  he  may  vary  it  in 
severity  or  mildness,  according  to  his  views  of  the  case. 

319.  Confinement  to  limits  of  post  or  reservation. — ^This  form  of  pun- 
ishment is  rather  a  deprivation  of  a  privilege  than  confinement. 
Where  it  is  imposed  on  an  officer  on  duty  with  troops  it  is  customary 


148  MANUAL  FOR  COUBTS-MARTIAL. 

to  SO  qualify  it  as  to  enable  him  to  take  part  in  maneuvers,  praetiod 
marches,  and  perform  other  duties  connected  with  his  command. 

320.  Dishonorable  discharge. — A  dishonorable  discharge  can  be  im- 
posed only  pursuant  to  a  sentence  of  a  general  court-martial.  The 
discharge  should  be  dated  as  of  the  day  on  which  the  order  promul- 
gating such  approval  is  received  at  the  post  where  the  soldier  is  held. 
A  sentence  adjudging  a  dishonorable  discharge  to  take  effect  at  such 
period  during  a  term  of  confinement  as  may  be  designated  by  the 
reviewing  authority  is  illegal. 

321.  Suspension  of  dishonorable  discharge. — Members  of  a  court-mar- 
tial may  properly  recommend,  in  a  communication  made  separately 
but  forwarded  to  the  reviewing  authority  with  the  record,  that  sen- 
tence of  dishonorable  discharge  be  suspended.     (See  par.  332.) 

322.  Confinement  at  hard  labor. — In  the  case  of  officers  this  punish- 
ment is  imposed  only  in  connection  with  a  sentence  of  dismissal. 
Where  "  hard  labor  "  is  intended,  it  should  be  stated  in  the  sentence, 
but  the  emission  of  these  words  will  not  prevent  such  punishment  be- 
ing required  where  it  is  authorized  in  the  maximum-punishment 
order.    (See  A.  W.  37.) 

[Note. — Chap.  XVI,  Sec.  I,  pars.  396-398,  state  the  rules  as  to  whether  a  post, 
the  United  States  Disciplinary  Barracks  or  one  of  its  branches,  or  a  peniten- 
tiary shall  be  designated  as  the  place  of  confinement.] 

323.  Hard  labor  without  confinement. — This  punishment  is  regulated 
by  the  provisions  of  the  Executive  order  fixing  the  maximum  limits 
of  pimishment.  Chapter  XIII,  Section  VI,  par.  349. 

324.  Forfeiture  of  pay  and  allowances. — ^Pay  and  allowances  can  not 
be  forfeited  in  a  sentence  by  implication.  If  the  court  intends  to 
forfeit  pay  or  pay  and  allowances,  the  penalty  of  forfeiture  should 
be  adjudged  in  express  terms  in  the  sentence.  No  other  punishment 
imposable  by  court-martial — ^not  even  a  sentence  of  death,  dismissal, 
suspension,  dishonorable  discharge,  or  imprisonment — involves  of 
itself  a  forfeiture  or  deprivation  of  any  part  of  the  pay  or  allow- 
ances due  the  party  at  the  time  of  the  approval  or  taking  effect  of 
the  sentence.  It  is  not  customary  to  provide  in  sentences  for  a  for- 
feiture of  allowances  unless  the  sentence  also  imposes  a  dishonorable 
discharge  and  forfeiture  of  pay.  A  sentence  of  forfeiture  of  a  cer- 
tain number  of  days'  pay,  or  two-thirds  of  a  soldier's  pay  for  a 
certain  period  does  not  forfeit  extra-duty  pay.  (Digest,  p.  544,  XII, 
B,  3,  e  (1) ;  Bui.  18,  War  Dept.,  1915,  pp.  8,  9.) 

325.  Conrts  can  not  stop  pay  in  favor  of  Government  or  an  individual. — 
A  court-martial  can  direct  a  forfeiture  only  in  favor  of  the  United 
States,  and  can  not  assign  the  pay  of  a  soldier  to  any  other  person ; 
nor  can  a  soldier  be  required  to  receipt  for  money  paid  without  his 
consent.  A  sentence  can  not  appropriate,  or  stop  pay  for  the  reim- 
bursement or  benefit  of  the  Government  or  a  Government  agency, 


OOUBTS-MABTIAL — CONOLTJDING  INCIDENTS  OF  THE  TRIAL.    149 

such  as  a  company  fund,  post  fund,  hospital  fund,  nor  of  an  in- 
dividual civil  or  military,  however  justly  the  same  may  be  due 
him,  either  for  money  borrowed,  stolen,  or  embezzled  by  the  accused 
or  to  satisfy  any  other  pecuniary  liability  of  the  accused,  whether 
in  the  nature  of  debt  or  damages.  The  "  stoppage  "  of  pay  to  reim- 
burse the  Government  or  a  Government  agency  on  account  of  losses 
for  which  officers  and  enlisted  men  are  responsible  is  purely  an  ad- 
ministrative matter  with  which  courts-martial  have  nothing  to  do. 
Sentences  providing  that  a  soldier  shall  be  dishonorably  discharged, 
forfeiting  all  pay  and  allowances  due  or  to  become  due,  "  except  such 

amounts  as  may  be  due  the  post  exchange,  Fort  ,  and  the 

company  fund,  Company , Infantry,"  in  no  way  hasten 

or  facilitate  the  settlement  of  the  debts  due  the  exchange  or  company 
fund.    Such  matters  in  a  sentence  are  mere  surplusage. 

326.  Forfeiture  of  deposits. — Deposits  of  soldiers  and  interest  thereon 
are  forfeited  by  desertion,  but  the  forfeiture  can  not  be  imposed 
by  sentence  of  a  court-martial.  They  are  exempt  from  liability  to 
meet  a  sentence  of  a  court-martial  imposing  forfeiture  of  pay  or 
allowances.  A  sentence  that  a  soldier  shall  deposit  a  certain  part  of 
his  pay  is  illegal.    (Digest,  p.  547,  XII,  B,  4,  c.) 

327.  Eeduction  of  noncommissioned  officer. — ^This  punishment  is  regu- 
lated by  the  provisions  of  the  Executive  order  fixing  maximum  limits 
of  punishment.  Chapter  XIII,  Section  VI,  par.  349. 

328.  Detention  of  pay. — This  punishment  was  revived  by  the  Execu- 
tive order  of  September  5,  1914,  fixing  the  maximum  limits  of  pun- 
ishment, and  is  regulated  by  the  provisions  of  the  Executive  order 
contained  in  Chapter  XIII,  Section  VI,  par.  349. 

329.  When  reward  for  apprehending  deserter  not  to  be  stopped. — If  a 
soldier  be  brought  to  trial  under  a  charge  of  desertion  and  acquitted, 
or  convicted  of  absence  without  leave  only,  any  amount  paid  as  a 
reward  for  his  arrest  will  not  be  stopped  against  his  pay,  and  a 
sentence  providing  for  such  a  stoppage  is  not  authorized. 

330.  Sentences  of  general  prisoners. — Courts-martial  in  imposing  sen- 
tences upon  general  prisoners  are  restricted  to  imposing  additional 
confinement  at  hard  labor  to  be  served  upon  the  completion  or  termi- 
nation of  their  existing  sentences,  and  will  not  interfere  with  the 
manner  of  executing  such  sentences  by  prescribing  loss  of  good- 
conduct  time,  solitary  confinement,  or  confinement  on  bread-and- 
water  diet,  leaving  all  such  punishments  to  be  imposed  by  the  com- 
manding officer  as  the  ordinary  means  of  enforcing  discipline. 

331.  Reasons  for  sentence. — ^A  court-martial  may  spread  upon  the 
record  of  trial  a  brief  statement  of  reasons  upon  which  its  sentence 
is  based.  In  many  cases  such  a  statement  will  aid  the  reviewing 
authority  in  determining  the  action  to  be  taken  by  him. 


150  MANUAL   FOR   COURTS-MARTIAL. 

332.  Recommendations  to  clemency. — When  a  court-martial,  or  any 
member  thereof,  desires  to  submit  a  recommendation  to  clemency, 
including  a  recommendation  for  the  suspension  of  the  whole  or  of 
any  part  of  the  sentence  imposed  by  the  court,  such  recommendation 
will  be  signed  by  each  member  of  the  court  desiring  to  participate 
therein.  The  communication  carrying  the  recommendation  will  in- 
clude a  statement  in  succinct  form  of  the  reasons  upon  which  the 
recommendation  is  baSed  and  will  be  appended  to  the  record  of  trial. 
(See  par.  357  (d).) 

332a.  Report  to  commanding  officer  of  result  of  trial — When  made. — 
When  an  enlisted  man  has  been  tried  by  a  general  court-martial 
and  acquitted,  or  has  been  convicted  and  the  sentence  does  not  include 
dishonorable  discharge  or  confinement,  the  judge  advocate  will  at 
once  notify  the  commanding  officer  in  writing,  direct,  of  the  fact  that 
the  prisoner  has  not  been  sentenced  to  dishonorable  discharge  or  con- 
finement, whereupon  the  commanding  officer  will  at  once  release  the 
prisoner  from  confinement  or  arrest,  provided  he  is  not  awaiting  trial 
or  result  of  trial  under  other  charges.     (C.  M.  C.  M.,  No.  1.) 


CHAPTER  XIII. 
COURTS-MARTIAL— PUNISHMENTS. 


Section  I:  Disciplinary  power  of  commanding  officer:  Page. 

333.  Authority  for 151  , 

334.  Record  of  punishment 152 

335.  Appeals 153 

336.  Not  limited  to  soldiers 153 

Section  II:  Confinement  in  a  penitentiary: 

337.  When  authorized , 153 

338.  Classes  of  sentences  to  be  executed  in  a  penitentiary 154 

339.  Authority  for  penitentiary  sentence  to  be  cited 155 

Section  III:  War  Department  policy  regarding  punishments: 

340.  Desertion. 156 

341.  Segregation  of  prisoners 158 

342.  Adaptation  of  punishments 159 

343.  Relative  severity  of  punishments 159 

Section  IV:  Prohibited  punishments: 

344.  By  statute 160 

345.  By  custom  and  regulations 160 

Section  V:  Death — Cowardice — Fraud: 

346.  Death  penalty 160 

347.  Cowardice — Fraud — Accessory  penalty 161 

Section  VI:  Maximum  limits: 

348.  By  whom  prescribed 161 

349.  Executive  order 161 

Section  I. 
DISCIPLINARY  POWER  OF  COMMANDING  OFFICER. 

333.  Authority  for. — While  courts-martial  are  the  judicial  machinery 
provided  by  law  for  the  trial  of  military  offenses,  the  law  also  recog- 
nizes that  the  legal  power  of  command,  when  wisely  and  justly  exer- 
cised to  that  end,  is  a  powerful  agency  for  the  maintenance  of  dis- 
cipline. Courts-martial  and  the  disciplinary  powers  of  commanding 
officers  have  their  respective  fields  in  which  they  most  effectually 
function.  The  tendency,  however,  is  to  resort  unnecessarily  to 
courts-martial.  To  invoke  court-martial  jurisdiction  rather  than  to 
exercise  this  power  of  command  in  matters  to  which  it  is  peculiarly 
applicable  and  effective,  is  to  choose  the  wrong  instrument,  disturb 
unnecessarily  military  functions,  injure  rather  than  maintain  dis- 
cipline, and  fail  to  exercise  an  authority  the  use  of  which  develops 
and  increases  the  capacity  for  command. 

Legal  sanction  is  now  given  to  the  exercise  of  such  disciplinary 
power  by  the  following  article  of  war : 

"Art.  104.  Under  such  regulations  as  the  President  may  prescribe, 
and  which  he  may  from  time  to  time  revoke,  alter,  or  add  to,  the 
commanding  officer  of  any  detachment,  company,  or  higher  command 

151 


152  MANUAL  FOR  COURTS-MARTTAL. 

may,  for  minor  offenses  not  denied  by  the  accused,  impose  dis- 
ciplinary punishments  upon  persons  of  his  command  without  the 
intervention  of  a  court-martial,  unless  the  accused  demands  trial  by 
court-martial. 

The  disciplinary  punishments  authorized  by  this  article  may  in- 
clude admonition,  reprimand,  withholding  of  privileges,  extra 
fatigue,  and  restriction  to  certain  specified  limits,  but  shall  not  in- 
clude forfeiture  of  pay  or  confinement  under  guard.  A  person 
punished  under  authority  of  this  article  who  deems  his  punishment 
unjust  or  disproportionate  to  the  offense  may,  through  the  proper 
channel,  appeal  to  the  next  superior  authority,  but  may  in  the  mean- 
time be  required  to  undergo  the  punishment  adjudged.  The  com- 
manding officer  who  imposes  the  punishment,  his  successor  in  com- 
mand, and  superior  authority  shall  have  power  to  mitigate  or  remit 
any  unexecuted  portion  of  the  punishment.  The  imposition  and  en- 
forcement of  disciplinary  punishment  under  authority  of  this  article 
for  any  act  or  omission  shall  not  be  a  bar  to  trial  by  court-martial 
for  a  crime  or  offense  growing  out  of  the  same  act  or  omission;  but 
the  fact  that  a  disciplinary  punishment  has  been  enforced  may  be 
shown  by  the  accused  upon  trial,  and  when  so  shown  shall  be  con- 
sidered in  determining  the  measure  of  punishment  to  be  adjudged  in 
the  event  of  a  finding  of  guilty." 

While  commanding  officers  should  always  use  their  utmost  influ- 
ence to  prevent  breaches  of  discipline  and  compose  conditions  likely 
to  give  rise  to  such  breaches,  they  should  also  impose  and  enforce 
the  disciplinary  punishment  authorized  by  the  above  article.  This 
authority,  involving  the  power,  judgment,  and  discretion  of  the 
commander,  can  not  be  delegated  to  or  in  any  manner  participated 
in  by  others,  but  must  be  exercised  by  the  commander  upon  his  own 
judgment  and  in  strict  compliance  with  the  article  and  the  regula- 
tions prescribed  by  the  President  pursuant  thereto.  Accordingly, 
the  commanding  officer  of  a  detachment,  company,  or  higher  com- 
mand will  usually  dispose  of,  and  may  award  disciplinary  punish- 
ment for,  any  offense  committed  by  any  enlisted  man  of  his  com- 
mand which  would  ordinarily  be  disposed  of  by  summary  court- 
martial,  when  the  accused  does  not  deny  that  he  committed  the 
offense  and  does  not  demand  trial  by  court-martial  before  the  com- 
manding officer  has  made  and  announced  his  decision  in  the  case. 

334.  Record  of  punishment. — For  each  punishment  awarded,  the 
commander  will  cause  a  brief  record  to  be  made  showing — 

(a)  Name  of  accused. 

(h)  Brief  statement  of  offense,  including  time  and  place. 

(c)  Statement  as  to  whether  or  not  accused  demanded  trial  by 
court-martial.  To  be  effective  such  demand  must  be  made  before 
award  of  punishment  by  commanding  officer. 


COURTS-MARTIAL — PUNISHMENTS.  153 

(d)  Disposition  of  case,  with  date  and  punishment  awarded,  if 
feny. 

(e)  Whether  or  not  appeal  was  made  to  higher  authority. 
(/)  Decision  of  higher  authority  on  appeal. 

(g)  Whether  or  not  accused  was  required  to  serve  punishment 
pending  appeal. 

335.  Appeals. — If  an  appeal  is  made  to  the  next  superior  authority  it 
shall  be  in  writing  through  the  immediate  commander  awarding  the 
punishment  or  his  successor,  who  will  immediately  forward  it  to  the 
superior  with  a  copy  of  the  record.  An  appeal  shall  consist  of  a 
brief  statement  signed  by  the  accused,  giving  his  reasons  for  regard- 
ing the  punishment  as  unjust  or  disproportionate,  and  shall  be  ac- 
companied by  a  like  brief  statement  by  the  commander  in  support  of 
the  punishment  awarded.  The  superior  will,  in  passing  upon  the  ap- 
peal, hear  no  witnesses  and  will  consider  no  statements  other  than 
those  forwarded  with  the  appeal,  but  will  be  limited  strictly  to  the 
consideration  of  the  punishment  awarded.  He  will  be  reluctant  to 
disturb  the  award  of  punishment,  but  when  justice  clearly  requires 
such  action  he  may  modify,  set  aside,  or  even  increase  the  punish- 
ment awarded,  but  in  no  case  will  he  award  a  different  kind  of  pun- 
ishment. After  having  considered  the  appeal  he  will  return  the 
record  to  the  commanding  officer  from  whom  received,  with  a  state- 
ment of  his  disposition  of  the  case. 

336.  Not  limited  to  soldiers.-^-The  power  is  not  limited  in  its  applica- 
tion, either  in  law  or  principle,  to  enlisted  men,  but  may  with  pro- 
priety be  applied  as  well  to  commissioned  officers,  especially  those 
of  junior  grades.  Obviously  in  the  case  of  officers  the  occasion  for 
such  action  will  be  less  frequent,  the  variety  of  punishment  available 
more  restricted,  and  the  selection  of  the  most  effectual  punishment 
more  perplexing,  but  when  the  best  interests  of  discipline  require 
such  action  it  shall  be  taken  with  firmness  and  in  no  wise  restrained 
by  an  unwarranted  regard  for  the  conamissioned  grade  of  the 
offender. 

If  the  accused  demands  a  court-martial,  steps  will  promptly  be 
taken  to  bring  him  to  trial  and  notation  of  the  demand  will  appear 
upon  the  charges. 

Section  II.  ,^ 

CONFINEMENT  IN  A  PENITENTIARY. 

337.  When  authorized.— The  forty-second  article  of  war  follows  the 
rules  of  the  Federal  Penal  Code  and  practice  respecting  the  impo- 
sition of  penitentiary  confinement  in  so  far  as  they  can  be  applied 
to  court-martial  procedure.  Under  the  Federal  Penal  Code  any 
offense  is  a  felony  which  is  punishable  under  the  code  or  other  statute 
of  the  United  States  by  confinement  in  excess  of  one  year.    But 


154  MANUAL  FOR  COURTS- MARTIAL. 

no  person  may  be  confined  in  a  penitentiary  uuless  the  ^^imishment 
actually  adjudged  for  an  offense  of  which  he  has  been  convicted 
exceeds  one  year.  Under  civil  procedure  it  is  not  permissible  to 
join  in  a  single  indictment  and  trial  offenses  of  a  different  nature. 
As  a  matter  of  practice,  also,  confinement  is  never  ordered  to  be 
executed  in  a  penitentiary  unless  among  the  offenses  upon  which  the 
sentence  is  awarded  is  found  a  felony ;  that  is  to  say,  an  offense  of 
a  civil  nature,  separately  punishable  by  confinement  to  exceed  one 
year.  The  practical  result  is  that  no  person  is  confined  in  a  peni- 
tentiary unless  both  of  the  following  conditions  subsist : 

(1)  The  confinement  that  could  lawfully  he  awarded  as  punish- 
ment of  some  one  of  the  offenses  of  which  he  stands  convicted  (if 
that  conviction  stood  alone)  would  exceed  one  year. 

(2)  The  confinement  actually  adjudged  exceeds  one  year. 

The  ninety-third  and  ninety-sixth  articles  of  war  now  confer  upon 
courts-martial  jurisdiction  to  try  all  crimes  and  offenses,  not  capital, 
of  which  persons  subject  to  military  law  may  be  guilty.  Under  the 
military  practice,  dissimilar  offenses  may  be  joined  in  the  same  set 
of  charges;  convictions  may  be  had  on  one  set  of  charges  joining 
crimes  of  a  civil  nature  with  purely  military  offenses,  and  a  single 
sentence  may  be  adjudged  on  all  the  convictions.  Also,  there  are 
certain  purely  military  offenses  which  are  by  statute  made  punish- 
able by  confinement  in  a  penitentiary,  regardless  of  the  term  of  con- 
finement imposed.  Notwithstanding  these  departures  from  the  prac- 
tice of  Federal  courts,  the  jurisdiction  granted  to  courts-martial  to 
punish  offenses  of  a  civil  nature  ought  not  to  be  exercised  with 
greater  harshness  than  is  practiced  under  the  criminal  jurisdiction 
of  United  States  courts,  and  the  analogies  with  the  penal  rules  of 
those  courts  ought  carefully  to  be  maintained.  The  forty-second 
article  of  war  and  the  following  rules  of  practice  which  result  from 
that  article  preserve  these  analogies  as  far  as  they  can  be  preserved 
under  court-martial  procedure. 

338.  Classes  of  sentences  to  be  executed  in  a  penitentiary. — Sentences 
of  the  following  classes  may  be  executed  in  a  penitentiary : 

Class  1:  Commutation  of  death  sentence.  Any  confinement, 
whether  more  or  less  than  a  year,  awarded  by  way  of  commutation  of 
a  death  sentence,  may  be  executed  in  a  penitentiary ;  and  this  is  true 
whether  the  offense  for  which  the  sentence  of  death  was  awarded  was 
of  a  military  or  of  a  civil  nature,  and  whether  the  sentence  was 
awarded  on  conviction  of  a  capital  charge  alone  or  on  conviction  on 
a  capital  charge  coupled  with  conviction  on  other  charges  not  capital. 

Class  2:  Military  offenses.  A  sentence  of  confinement  awarded 
upon  conviction  of  one  or  more  of  the  military  offenses  enumerated 
in  this  class  may  be  executed  in  a  penitentiary,  regardless  of  the 


COURTS-MARTIAL — PUNISHMENTS.  155 

length  of  the  sentence  imposed,  but,  in  practice,  a  penitentiary  should 
not  be  designated  unless  the  conftnement  adjudged  exceeds  one  year. 
However,  if  a  conviction  is  had  on  several  offenses,  either  military  or 
civil  in  nature,  one  of  v^hich  is  included  in  this  class,  and  the  sen- 
tence adjudged  on  all  the  convictions  together  exceeds  one  year,  the 
confinement  may  be  executed  in  a  penitentiary.  The  military  of- 
fenses comprised  in  this  class  are : 

(«.)  Desertion  in  time  of  war. 

{h)  Repeated  desertion  in  time  of  peace. 

{c)  Mutiny. 

Class  3:  Offenses  of  a  civil  nature.  A  sentence  exceeding  one 
yearns  confinement^  awarded,  either  on  conviction  of  any  one  or  more 
of  the  several  offenses  of  a  civil  nature  described  below,  or  on  con- 
viction of  any  one  or  more  of  the  several  offenses  of  a  civil  nature 
described  below,  coupled  with  a  conviction  or  convictions  of  one  or 
more  military  offenses,  may  be  executed  in  a  penitentiary,  if  any  one 
of  the  several  offenses  of  a  civil  nature  standing  alone  would  be 
punishable  by  confinement  exceeding  one  year  by  the  limits  of  punish- 
ment order,  or,  if  not  covered  by  said  order,  then  by  the  law  denounc- 
ing the  offense,  or  by  any  other  Federal  statute. 

The  civil  offenses  contemplated  in  class  3  are : 

{a)  An  act  or  omission  specified  and  denounced  as  an  offense  in 
the  Penal  Code  of  the  United  States. 

{h)  An  act  or  omission  specified  and  denounced  as  an  offense  in 
any  other  statute  of  the  United  States.  This  heading  has  reference 
particularly  to  penal  provisions  not  properly  separable  from  the  ad- 
ministrative laws  of  the  several  branches  and  departments  of  gov- 
ernment, and  not  included  in  the  Penal  Code.  Such  offenses  will 
rarely  be  encountered  in  court-martial  practice. 

{c)  An  act  or  omission  committed  or  omitted  in  any  place  over 
which  the  United  States  has  exclusive  jurisdiction  as  provided  in  the 
third  paragraph  of  section  272,  Penal  Code  of  the  United  States, 
where  such  act  is  recognized  as  an  offense  by  the  law  of  the  State, 
Territory,  or  District  in  which  such  place  is  situate,  and  when  such 
act  is  not  specifically  denounced  in  the  laws  of  Congress,  but  is 
adopted  by  section  289  of  said  code.  Such  offenses,  known  to  local 
law  and  not  specifically  provided  for  by  Federal  law,  will  constitute 
a  small  class,  infrequently  encountered. 

{d)  An  act  or  omission  recognized  as  an  offense  at  the  common 
law  as  the  same  exists  in  the  District  of  Columbia,  wherever  com- 
mitted or  omitted.  The  offenses  under  this  head  that  may  be  en- 
countered in  court-martial  practice  include  the  offense  of  sodomy. 

339.  Authority  for  penitentiary  sentence  to  be  cited. — In  each  case  tried 
by  general  court-martial  in  which  a  penitentiary  is  designated  as  the 
place  of  confinement  of  the  person  tried,  the  record  of  trial,  when  for- 


156  MANUAL  FOR  COURTS- MARTIAL. 

warded  to  the  Judge  Advocate  General  of  the  Army,  will  be  accom- 
panied  by  a » signed  statement  indicating  the  law  or  laws  authorizing 
the  confinement  in  a  penitentiary  of  the  person  sentenced. 

In  each  case  tried  by  general  court-martial  in  which  the  confine- 
ment of  the  offender  in  a  penitentiary  is  authorized  by  law,  but  in 
which  a  place  other  than  a  penitentiary  is  designated  as  the  place  of 
confinement,  the  record  of  trial,  when  forwarded  to  the  Judge  Advo- 
cate General  of  the  Army,  will  be  accompanied  by  a  signed  statement 
indicating  the  law  authorizing  the  confinement  in  a  penitentiary  of 
the  person  sentenced  and  the  reasons,  briefly  expressed,  for  desig- 
nating a  place  other  than  a  penitentiary,  instead  of  a  penitentiary,  as 
the  place  of  confinement  in  the  particular  case. 

If  the  law  relied  upon  as  authorizing  confinement  in  a  peniten- 
tiary be  a  Federal  statute  an  accurate  citation  will  be  regarded  as 
sufficient  to  indicate  the  law,  but  if  any  other  law  is  relied  upon  as 
authorizing  such  confinement,  the  law  will  be  quoted  in  full  in  the 
required  statement. 

Section  III. 

WAR  DEPARTMENT  POLICY  REGARDING  PUNISHMENTS. 

340.  Desertion. — The  policy  of  the  War  Department  respecting  pun- 
ishment for  desertion  was  announced  in  General  Orders,  No.  77,  War 
Department,  June  10,  1911.  Corrective  confinement  and  forfeiture 
were  suggested  in  cases  of  inexperienced  soldiers  who  by  surrender 
manifested  a  disposition  to  atone  for  their  offenses.  The  number  so 
punished  and  saved  to  the  service  has  so  increased  each  year  that  this 
policy  has  been  enforced  with  fairly  satisfactory  results.  In  addi- 
tion a  limited  number  of  this  class  of  offenders  has  been  restored  to 
duty  without  trial  under  the  provisions  of  A.  E.  131. 

Since  that  order  was  issued  important  changes  have  been  intro- 
duced in  our  military  penology.  Purely  military  offenders  serving 
sentences  in  the  United  States  Disciplinary  Barracks  at  Fort  Leaven- 
worth and  its  branches  may  be  restored  to  an  honorable  status  and 
complete  their  enlistment.  By  the  act  of  August  22,  1912  (37  Stat., 
356),  reenlistment  of  this  class  of  offenders  is  authorized  with  the 
approval,  in  each  case,  of  the  Secretary  of  War.  Under  the  provisions 
of  the  act  of  April  27,  1914  (38  Stat.,  354),  dishonorable  discharge 
may  be  suspended  with  a  view  to  restoration  to  duty  by  remission 
thereof  should  the  conduct  of  the  offender  warrant.  There  are  now 
additional  means  of  saving  men  to  the  colors — men  whose  offenses  are 
thoughtless  acts  due  to  youth  or  inexperience  or  committed  under 
some  special  stress,  and  for  these  reasons  have  in  them  less  of  the  ele- 
ment of  culpability.    Supplementing  these  methods  is  the  establish- 


COURTS-MARTIAL — ^PUNISHMENTS.  157 

ment  of  disciplinary  organizations  at  the  United  States  Disciplinary 
Barracks  where  the  offenders  of  this  class  who  desire  reenlistment  or 
restoration  may  receive  an  intensive  practical  training  to  fit  them  for 
efficient  service  from  the  moment  of  rejoining.  It  is  confidently  be- 
lieved that  men  restored  in  this  way  will  make  better  soldiers  than 
those  restored  by  the  old  methods,  viz,  without  trial  under  A.  R.  131 
or  with  trial  and  a  short  period  of  corrective  punishment. 

These  old  methods  may  be  continued  in  the  limited  number  of 
cases  where  there  are  good  grounds  for  belief  that  a  soldier  restored 
by  such  methods  will  creditably  complete  his  enlistment  period,  but 
all  doubtful  cases  should  be  sent  before  a  court  competent  to  adjudge 
dishonorable  discharge  and  the  longer  periods  of  confinement,  to 
the  end  that  advantage  may  be  taken  of  the  more  effective  methods 
of  reformation  and  training  by  hard  labor  and  intensive  practical 
military  instruction  now  provided  at  the  United  States  Disciplinary 
Barracks.  These  periods  of  confinement  are  graduated  so  as  to 
prevent  inequalities  of  punishment  for  like  degrees  of  culpability 
and  are  sufficient,  it  is  believed,  to  meet  the  ends  of  punishment  where 
restoration  to  duty  is  not  in  contemplation.  Where  restoration  is  in 
contemplation,  as  in  case  of  purely  military  offenders,  including 
deserters,  the  period  of  confinement  imposed  is,  under  the  new  policy, 
in  practical  effect  the  maximum  of  an  indeterminate  sentence.  In 
other  words,  the  period  for  which  the  offender  is  held  depends 
entirely  upon  himself.  With  good  conduct  and  proper  progress 
toward  reform  evidencing  efficiency  in  training  and  fitness  to  re- 
sume service  relations  the  sentence  of  confinement  terminates  and 
the  honorable  status  of  duty  with  the  colors  is  resumed. 

While  it  is  the  effect  of  this  policy  to  mitigate  the  condition  of  the 
peace  deserter  who  desires  to  redeem  his  record  and  earn  an  honorable 
restoration  to  duty  with  the  colors,  it  carries  no  substantial  mitiga- 
tion as  to  other  classes  of  deserters.  Experience  has  not  thus  far 
demonstrated  the  wisdom  of  any  change  in  the  policy  of  severe 
punishment  for  this  latter  class.  An  engagement  for  military  service 
has  little  in  common  with  an  ordinary  private  contract  for  personal 
service,  and  the  fact  that  an  individual  may  abandon  such  a  con- 
tract with  only  minor  consequences  to  himself  furnishes  no  suggestion 
that  a  corresponding  rule  may  be  properly  adopted  in  the  Army. 
Nor  does  the  fact  that  the  early  requirement  of  the  common  law  that 
a  call  to  civil  office  or  civil  employment  under  the  Government  could 
not  be  disregarded  by  the  citizen,  nor  the  obligations  of  such  office  or 
employment  be  laid  down  at  his  will,  no  longer  obtains,  furnish  any 
such  suggestion.  An  engagement  for  military  service  creates  a 
special  status,  and  many  obligations  flow  from  that  status  which  are 
not  obligations  of  the  citizen  in  the  civil  service  of  the  Government 
or  under  a  private  contract  for  personal  service.     Other  closely  re- 


158  MANUAL  FOB  COURTS-MARTIAL. 

lated  considerations  inherent  in  the  nature  of  military  service  support 
this  view.  The  Army  is  an  emergent  arm  of  the  public  service  which 
the  Nation  holds  ready  for  a  time  of  great  peril.  Military  service  is 
an  obligation  which  every  citizen  owes  the  Government.  It  is  settled 
law  that  such  service  may  be  compelled,  if  necessary,  by  draft.  Nor 
is  the  obligation  of  the  soldier  who  volunteers  for  a  fixed  period  dif- 
ferent from  that  of  the  drafted  soldier.  By  his  act  of  volunteering 
he  consecrates  himself  to  the  military  service.  His  engagement,  sup- 
ported by  an  oath  of  allegiance,  is  that  the  Nation  may  depend  upon 
him  for  such  service  during  the  fixed  period,  whatever  may  be  the 
emergency.  When  this  engagement  is  breached  a  high  obligation  to 
the  Nation  is  disregarded,  a  solemn  oath  of  alle^ance  is  violated,  and 
the  Government  is  defrauded  in  the  amount  of  its  outlay  incident  to 
inducting  the  soldier  into  the  military  service,  training,  clothing,  and 
caring  for  him  while  he  remains  in  that  service,  and  transporting  him 
to  the  station  from  which  he  deserts.  Desertion  is  thus  seen  to  be, 
not  simply  a  breach  of  contract  for  personal  service,  but  a  grave  crime 
against  the  Government ;  in  time  of  war  perhaps  the  gravest  that  a 
soldier  can  commit,  and  at  such  times  punishable  with  death.  These 
facts  furnish  ample  justification  for  a  continuance  of  the  policy  of 
severe  punishment  for  the  offense  of  desertion  in  time  of  peace,  sub- 
ject only  to  the  qualification  that  it  should  not  be  severe  to  the  degree 
of  barring  an  honorable  restoration  to  duty  of  the  thoughtless,  young, 
or  inexperienced  offenders  who  desert  and  who,  on  return,  manifest 
a  desire  to  atone  for  their  desertions  and  qualify  themselves  in 
character  and  training  for  such  restoration  by  service  in  the  disci- 
plinary battalions  and  companies  now  organized  at  the  United  States 
Disciplinary  Barracks. 

341.  Segregation  of  prisoners. — It  is  the  policy  of  the  War  Depart- 
ment to  separate,  so  far  as  practicable,  general  prisoners  convicted  of 
offenses  punishable  by  penitentiary  confinement  from  general  pris- 
oners convicted  of  purely  military  offenses  or  of  misdemeanors  in 
connection  with  purely  military  offenses.  In  furtherance  of  this 
policy,  reviewing  authorities  will  designate  a  penitentiary  as  the 
place  of  confinement  of  general  prisoners  sentenced  to  be  confined 
for  more  than  one  year  according  to  the  rules  laid  down  in  Sec- 
tion II,  supra^  except  in  individual  cases  in  which  the  proved 
circumstances  show  that  the  holding  of  the  prisoners  so  convicted  in 
barracks  associations  with  misdemeanants  and  military  offenders  will 
not  be  to  the  detriment  of  the  latter.  Instructions  will  be  issued 
from  time  to  time  by  the  War  Department  to  commanders  having 
general  court-martial  jurisdiction  regarding  the  place  of  confine- 


COURTS-MARTIAL PUNISHMENTS .  159 

ment  for  general  prisoners  sentenced  to  confinement  in  penitentiaries. 
{O.  M,  C.  M,,  No.  1.) 

342.  Adaptation  of  punishments. — In  cases  where  the  punishment  is 
discretionary  the  best  interests  of  the  service  and  of  society  demand 
thoughtful  application  of  the  following  principles:  That  because 
of  the  effect  of  confinement  upon  the  soldier's  self-respect  confine- 
ment is  not  to  be  ordered  when  the  interests  of  the  service  permit  it 
to  be  avoided;  that  a  man  against  whom  there  is  no  evidence  of 
previous  convictions  for  the  same  or  similar  offenses  should  be  pun- 
ished less  severely  than  one  who  has  offended  repeatedly;  that  the 
presence  or  absence  of  extenuating  or  aggravating  circumstances 
should  be  taken  into  consideration  in  determining  the  measure  of 
punishment  in  any  case;  that  the  maximum  limits  of  punishment 
authorized  are  to  be  applied  only  in  cases  in  which,  from  the  nature 
and  circumstances  of  the  offense  and  the  general  conduct  of  the 
offender,  severe  punishment  appears  to  be  necessary  to  meet  the 
ends  of  discipline;  and  that  in  adjudging  punishment  the  court 
should  take  into  consideration  the  individual  characteristics  of  the 
accused,  with  a  view  to  determining  the  nature  of  the  punishment 
best  suited  to  produce  the  desired  results  in  the  case  in  question,  as 
the  individual  factor  in  one  case  may  be  such  that  punishment  of 
one  kind  would  serve  the  ends  of  discipline,  while  in  another  case 
punishment  of  a  different  kind  would  be  required.  As  an  instance 
of  the  necessity  for  adapting  punishment  to  the  particular  case 
under  consideration,  it  is  to  be  noted  that  prior  experience  with 
detention  of  pay  by  sentence  of  court-martial  indicates  that  this 
form  of  punisliment,  while  not  generally  applicable,  was  neverthe- 
less found  to  be  an  effective  means  of  re^raint  and  discipline  for  a 
considerable  number  of  offenders. 

343.  Relative  severity  of  punishments. — The  usual  punishments  im- 
posed upon  soldiers  are  the  following,  beginning  with  the  least 
severe : 

(1)  Detention  of  pay, 

(2)  Forfeiture  of   pay, 

(3)  Reduction, 

(4)  Hard  labor  without  confinement, 

(5)  Confinement  at  hard  labor,  and 

(6)  Dishonorable  discharge. 

In  the  absence  of  evidence  of  two  or  more  previous  convictions,  fL 
minor  offense,  the  nature  of  which  appears  to  demand  punishment  by 
hard  labor,  should  ordinarily  be  punished  by  hard  labor  without  con- 
finement, rather  than  by  confinement  at  hard  labor.  For  offenses 
properly  punishable  by  detention  of  pay,  forfeiture  of  pay,  reduc- 


160  MANUAL  FOR  COURTS-MARTIAL. 

tion,  or  hard  labor  without  confinement,  those  forms  of  punishment 
should,  as  a  rule,  be  resorted  to  before  confinement  at  hard  labor  is 
imposed. 

Section  IV. 

PROHIBITED   PUNISHMENTS. 

344.  By  statute. — Punishment  by  flogging,  or  by  branding,  marking, 
or  tattooing  on  the  body  is  prohibited.     (A.  W.  41.) 

345.  By  custom  and  reflations. — Many  punishments  formerly  sanc- 
tioned have  now,  under  a  more  enlightened  spirit  of  penology,  become 
so  obsolete  as  to  be  effectually  prohibited  by  custom  without  the 
necessity  of  regulations;  among  these,  are  carrying  a  loaded  knap- 
sack, wearing  irons  (both  handcuffs  and  leg  irons — ^these  are  now 
used  only  in  exceptional  cases  for  the  purpose  of  preventing  escape 
and  not  as  a  punishment),  shaving  the  head,  placarding,  pillory, 
stocks,  and  tying  up  by  the  thumbs.  To  impose  Tnilitary  duty  in  any 
foTTYh  as  a  punishment  must  tend  to  degrade  it,  to  the  prejudice  of  the 
best  interests  of  the  service;  such  punishments,  therefore,  as  impos- 
ing tours  of  guard  duty  or  requiring  a  soldier  to  sound  all  calls  at 
the  post  for  a  certain  period,  are  forbidden.  Solitary  confinement 
on  a  bread  and  water  diet  and  the  placing  of  a  prisoner  in  irons  are 
regarded  as  means  of  enforcing  prison  discipline.  They  will  not  be 
imposed  as  a  punishment  by  a  court-martial. 


./■ 


Section  V. 
DEATH— COWARDICE— FRAUD. 


346.  Death  penalty. — ^No  person  shall,  by  general  court-martial,  be 
convicted  of  an  offense  for  which  the  death  penalty  is  made  manda- 
tory by  law,  nor  sentenced  to  suffer  death,  except  by  the  concur- 
rence of  two-thirds  of  the  members  of  said  court-martial  and  for  an 
offense  in  these  articles  expressly  made  punishable  by  death.  (A.  W. 
43.)  A  court-martial,  in  imposing  the  sentence  of  death,  should  not 
designate  the  time  and  place  for  its  execution,  such  designation  not 
being  within  its  province,  but  pertaining  to  that  of  the  reviewing  or 
confirming  authority.  If  it  does  so  designate,  this  part  of  the  sen- 
tence may  be  disregarded,  and  a  different  time  and  place  be  fixed  by 
the  reviewing  or  confirming  authority.  (Digest,  p.  165,  XCVI,  B. )  If 
the  designated  day  passes  without  execution,  the  same  authority,  or 
his  superior,  may  name  another  day.  Death  by  hanging  is  considered 
more  ignominious  than  death  by  shooting  and  is  the  usual  method  of 
execution  designated  in  the  case  of  spies,  of  persons  guilty  of  murder 
in  connection  with  mutiny,  or  sometimes  for  desertion  in  the  face  of 
the  enemy;  but  in  case  of  a  purely  military  offense,  as  sleeping  on 


COUBTS-MARTIAL — PUNISHMENTS.  161 

post,  such  sentence  when  imposed  is  usually  "  to  be  shot  to  death  with 
musketry."  Hanging  is  the  proper  method  of  executing  a  death  sen- 
tence when  imposed  for  violation  of  A.  W.  92.  For  the  sake  of 
example  and  to  deter  others  from  committing  like  offenses  the  death 
sentence  may,  when  deemed  advisable,  be  executed  in  the  presence  of 
the  troops  of  the  command. 

347.  Cowardice — Fraud — ^Accessory  penalty. — When  an  officer  is  dis- 
missed from  the  service  for  cowardice  or  fraud,  the  crime,  punish- 
ment, name,  and  place  of  abode  of  the  delinquent  shall  be  published 
in  the  newspapers  in  and  about  the  camp  and  in  the  State  from  which 
the  offender  came  or  where  he  usually  resides ;  and  after  such  publi- 
cation it  shall  be  scandalous  for  an  officer  to  associate  with  him. 
(A.  W.  44.)  The  terms  "  cowardice  "  and  "  fraud  "  as  employed  in 
this  article  refer  mainly  to  the  offenses  made  punishable  by  A.  W.  75 
and  94.  With  these,  however,  may  be  regarded  as  included  all 
offenses  in  which  fraud  or  cowardice  is  necessarily  involved^  though 
the  same  be  not  expressed  in  terms  in  the  charge  or  specification. 
(Digest,  p.  166,  C,  A.)  The  publication  throughout  the  United 
States  in  press  dispatches  of  "  the  crime,  punishment,  name,  and 
place  of  abode"  of  the  accused  is  a  sufficient  compliance  with  the 
article.     (See  Digest,  p.  167,  C,  B.) 

Section  VI. 
MAXIMUM  LIMITS. 

348.  By  whom  prescribed. — Whenever  the  punishment  for  a  crime  or 
offense  made  punishable  by  these  articles  is  left  to  the  discretion  of 
the  court-martial,  the  punishment  shall  not,  in  time  of  peace,  exceed 
such  limit  or  limits  as  the  President  may  from  time  to  time  prescribe. 
(A.  W.  45.) 

349.  Executive  order. — The  following  Executive  order  becomes  op- 
erative on  March  1,  1917,  as  to  offenses  committed  on  and  after  that 
date  and  as  to  criminal  acts,  committed  prior  to  that  date,  whose 
maximum  punishment  was  not  prescribed  in  the  Executive  order  of 
September  5,  1914.  The  Executive  order  of  September  5,  1914,  pub- 
lished in  General  Orders,  No.  70,  War  Department,  1914,  prescribing 
limits  of  punishment,  remains  operative  as  to  offenses  committed 
before  March  1,  1917,  except  as  to  criminal  acts  whose  maximum 
punishment  has  been  decreased  by  this  order,  which  will  not  be  fol- 
lowed by  severer  punishment  than  is  hereinafter  prescribed. 

Executive  Oedeb. 

Under  authority  of  an  act  of  Congress  approved  September  27,  1890  (26  Stat., 
491),' as  reenacted  in  article  45  of  section  3  of  an  act  of  Congress  approved 
August  29,  1916  (39  Stat.,  657),  the  following  maximum  limits,  in  time  of  peace, 
of  punishment  of  soldiers  are  prescribed : 

91487°— 17 12 


162 


MANUAL  FOR  COURTS-MARTIAL. 
Aeticle  I. 


Offenses. 

Punishments. 

i 

< 

Dis- 
honor- 
able dis- 
charge, 
forfeiture 

ofaU 
pay  and 
allow- 
ances due 
and  to 
become 
due. 

Confinement  at  hard 
labor. 

For- 
feiture 
of  two- 
thirds 
pay  per 
month. 

For- 
feitura 
of  pay 

Years. 

Months. 

Days. 

Months. 

Days. 

64 

Enlistment,  fraudulent: 

Procured  by  means  of  willful  misrepre- 
sentation or  concealment  of  a  fact  in 
regard  to  a  prior  enlistment  or  dis- 
charge, or  in  regard  to  a  conviction 
of  a  civil  or  military  offense,  or  in 
regard  to  imprisonment  under  sen- 
tence of  a  court. 

Yes..'... 
Yes 

1 

6 

6 

f8 

Attempting  to  desert: 

After  not  more  than  six  months  in 

service. 
Aftor  more  than  six  months  in  service. - . 
In  the  execution  of  a  conspiracy  or  in 
the  presence  of  an  imlawful  assem- 
blage which  the  troops  may  be  oppos- 
ing. 
Desertion: 

Terminated  by  apprehension— 

Not  more  than  6  months  in  service 

at  time  of  desertion. 
More  than  6  months  in  service  at 
time  of  desertion. 
Terminated  by  surrender- 
After  absence  of  not  more  than  30 

days. 
After  absence  of  more  than  30  days. . 
In  the  execution  of  a  conspiracy  or  in 
the  presence  of  an  imlawful  assem- 
blage which  the  troops  may  be  oppos- 
ing. 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

1 
3 

1 

I' 

69 

6 

6 

Assisting  knowingly,  or  persuading  another 
to  desert                      .................. 

Yes 

1 

3 

61 

Absence  without  leave- 

From  command,  quarters,  station,  or 
camT) — 
For  not  more  than  30  days,  for  each 
day  or  fraction  of  a  day  of  absence. 

2 

Yes 

6 

From  gviard— 

TTrtr  -not  mnro  fVian  1  nnnr 

15 

3 

3 

Failing  to  repair  at  the  fixed  time  to  the 
properly  appointed  place  of  assembly  for, 
or  place  for: 

A  f>ilpfir>  fiTArr>l<!A                   -             ........ 

Drill                                         

TTafiornft                                                              .    ...... 

nallftrv  ■nra/>f  inft                                            ...... 

TTnr<3«  AYArfisft                             -                  ...... 

3 

Tn^^T»^1f»t.^f^n                              .    .                 .    .... 

2 

2 

Muster                          

Pricnn  iniarH 

School 

Hta'hlQ /Jntir 

March 

Reveille  or  retreat  roll  call -  • 

1 

COURTS-MARTIAL PUNISHMENTS. 

Article  I — Continued. 


163 


Offenses. 

Punishments. 

i 

Dis- 
honor- 
able dis- 
charge, 
forfeiture 

of  all 
pay  and 
allow- 
ances due 
and  to 
become 
due. 

Confinement  at  hard 
labor. 

For- 
feiture 
of  two- 
thirds 
pay  per 
month. 

For- 
feituftt 
of  pay. 

i 

Years. 

Months. 

Days. 

Months. 

Days. 

ei 

Leaving  without  permission  the  properly 
appointed  place  of  assembly  for,  or  place 
for: 
Athletic  exercise 

Drill                         

Fatigue     

Field  exercise           

Gallery  practice                     .. .... 

Horse  exercise                 

Inspection 

5 

Instruction 

Muster                                       

Parade      

Prison  guard       .             

School          

Stable  duty                                  

Reveille  or  retreat  roll  call 

£ 

6? 

Using  contemptuous  or  disrespectful  words 
against  the  President,  Vice  President,  etc. 

Behaving  with  disrespect  toward  his  supe- 
rior officer. 

Attempting  to  strike  or  attempting  other- 
wise to  assault  a  noncommissioned  officer 
in  the  execution  of  his  office. 

Behaving  in  an  insubordinate  or  disrespect- 
ful manner  toward  a  noncommissioned 
officer  hx  the  execution  of  his  office. 

Disobedience,  willful,  of  the  lawful  order  of  a 
noncommissioned  officer  in  the  execution 
of  his  office. 

Striking  or  otherwise  assaulting  a  noncom- 
missioned officer  in  the  execution  of  his 
office. 

Threatening  to  strike  or  otherwise  assault, 

a  noncommissioned  officer  in  the  execution 
of  his  office. 

Using  insvilting  language  toward  a  noncom- 
missioned officer  in  the  execution  of  his 
office. 

Drawing  a  weapon  upon  a  noncommis- 
sioned officer  quelling  a  quarrel,  fray,  or 
disorder. 

Refusing  to  obey  a  noncommissioned  officer 
quelling  a  quarrel,  fray,  or  disorder. 

Threatening    a    noncommissioned    officer 
quelling  a  quarrel,  fray,  or  disorder 

Breach  of  arrest 

Yes 

1 

en 

6 
6 

2 

6 

6 
6 

2 

6 

6^ 

Yes 

1 

4 
2 

4 
2 

m 

Yes 

Yes 

2 

6 

1 

6 
1 

f» 

Escaping  from  confinement 

Yes 

Yes 

Yes 

1 
1 

1 

'n 

Releasing,   without   proper   authority,   a 
prisoner  committed  to  his  charge 

Suffering  a  prisoner  committed  to  his  charge 
to  escape: 
Through  design 

Through  neglect 

6 

3 
6 

6 

3 
6 

83 

Suffering,  through  neglect,  military  prop- 
erty to  be  damaged,  lost,  spoiled,  or 
wrongfully  disposed  or: 
Of  a  value  of  $20  or  less 

Of  a  value  of  $50  or  less  and  more  than 

$20. 
Of  a  value  of  more  than  $50 

Yes 

1 

164 


MANUAL   FOR   COURTS-MARTIAL. 
Article  I — Continued. 


Offenses. 

Punishments, 

1 

J2 

Dis- 
honor- 
able dis- 
charge, 
forfeiture 

of  all 
pay  and 
allow- 
ances due 
and  to 
become 
due. 

Confinement  at  hard 
labor. 

For- 
feiture 
of  two- 
thirds 
pay  per 
month. 

For- 
feituw 
of  pay. 

Years. 

Months. 

Days. 

Months. 

Days. 

83 

Suffering,  willfully,  military  property  to  be 
damaged,  lost,  si)oiled,  or  wrongfully  dis- 
posed of  : 

6 
6 

6 

Of  a  value  of  $50  or  less  and  more  than 

$20. 
Of  a  value  of  more  than  $50 

Yes 

Yes....: 

2 

84 

Injuring  or  losing,  through  neglect,  horse, 
arms,  ammimition,  accouterments,  equip- 
ment, clothing,  or  other  property  issued 
for  use  in  the  military  service,  or  items 
belonging  to  two  or  more  of  said  classes: 
Of  a  value  of  $20  or  less 

3 
6 

3 
5 

Of  a  value  of  $50  or  less  and  more  than 

$20. 
Of  a  value  of  more  than  $50 

Yes 

1 

Injuring  or  losing,  willfully,  horse^  arms, 
rjnmunition,  accouterments,  equipment, 
clothing,  or  other  property  issued  for  use 
In  the  military  service,  or  items  belonging 
to  two  or  more  of  said  classes: 
Of  a  value  of  $20  or  less 

6 
6 

6 

Of  a  value  of  $50  or  less  and  more  than 

$20. 
Of  a  value  of  more  than  $50 

Yes 

Yes 

Yes 

2 

SeUtng  or  otherwise  wrongfully  disposing  of 
horse,  arms,  ammunition,  accouterments, 
equipment,  clothing,  or  other  property 
Issued  for  use  in  the  military  service,  or 
it^ims  belonging  to  two  or  more  of  said 
classes: 
Of  a  value  of  $20  or  less 

6 

' 

Of  a  value  of  $50  or  less  and  more  than  $20 
Of  a  value  of  more  than  $50 

Yes 

Yes 

1 
5 

85 

Fotind  drunk: 

At  formation  for  or  at— 

Athletic  exercise 

. 

Drill 

Fatigue                            

GaUer V  practice     

Inspection 

20 

Instruction 

March                                        

Muster 

Parade    .                     

Review 

School.            

Stable  duty                                    .  . 

Reveille  or  retreat  roll  call 

5 

On  guard 

6 

6 

On  duty  as— 

Barrack  orderly 

Cook    . .  .■."■":::::::::::::::: 

Dining  room  orderlv- 

Farrier 

Horseshoer                            

Kitchen  police 

20 

Mess  sergeant 

Noncommissioned  officer  in  charge 

of  quarters. 
Saddler 

Supply  sergeant                     

Wagoner 

i 

COURTS-MARTTAL PUNISHMENTS. 

Article  I — Continued. 


165 


Offenses. 

Punishments. 

i 

« 

Dis- 
honor- 
able dis- 
charge, 
forfeitiure 

of  all 
pay  and 
allow- 
ances due 
and  to 
become 
due. 

Confinement  at  hard 
labor. 

For- 
feiture 
of  two- 
thirds 
pay  per 
month. 

For- 
feiture 
of  pay. 

4 
^ 

Years. 

Months. 

Days. 

Months. 

Days. 

86 

Found  drunk  on  post,  sentinel  ...         

Yes  ..  . 

6 

1 

3 

Leaving  before  regularly  relieved  from  or 

sleeping  on  post,  sentinel. 
Using  a  provoking  or  reproachful  speech  or 

gesture  to  another. 
Arson                                                    ....... 

Yes 

1 

90 



3 

0? 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

20 

5 
10 

20 
10 

Assault: 

With  intent  to  do  bodily  harm 

With  intent  to  commit  any  felony  ex- 
cept murder  or  rape. 
With  intent  to  commit  murder  or  rape. . 

Embezzlement  or  larceny: 

Of  property  of  a  value  of  $20  or  less 

Of  property  of  a  value  of  $50  or  less,  and 
more  than  $20. 

Of  property  of  a  value  of  more  than  $50. . . 
Manslaughtex: 

Involuntary,  in  the  commission  of  an  un- 
lawful act  not  amounting  to  a  felony. 
or  in  the  commission  of  a  lawful  act 
which  might  produce  death,  in  an  un- 
lawful manner,  or  without  due  cau- 
tion or  circumspection. 

Voluntary,  upon  a  sudden  quarrel  or 
heat  of  passion. 
Perjury 

6 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

1 
5 
3 

10 

5 
10 
6 

1 
5 

Robbery 

94 

Forging  or  counterfeiting  a  signattu'e,  mak- 
ing a  false  oath,  and  offenses  related  to 
either  of  these. 
Other  cases: 

When  the  amount  involved  is  $50  or  less . 
When  the  amount  involved  is  more  than 
$50. 

96 

6 
3 
3 

::;::::: 

6 
3 
3 

Abusing  a  public  animal                     ... 

Allowing  a  prisoner  to  receive  or  obtain 

intoxicating  liquor. 
Appearing   in    civilian    clothfaig   without 

authority. 
Appearing  in  unclean  uniform,  or  not  in 

prescribed  uniform,  or  in  uniform  worn 

otherwise  than  in  manner  prescribed. 
Assault. 

10 

1 

3 
6 
6 
6 

1 

1 

3 
3 



1 

3 
6 

Assault  and  battery 

Attempting  to  escape  from  confinement 

Attempting  to  strike  or  attempting  other- 
wise to  assult  a  sentinel  in  the  execution 
of  his  duty. 

Behaving  in  an  insubordinate  or  disresi)ect- 
ful  manner  toward  a  sentinel  in  the  execu- 
tion of  his  duty. 

Breach  of  restriction  (other  than  quarantine) 
to  command,  quarters,  station,  or  camp. 

Carrying  a  concealed  weapon 

Yes... 

6 
1 

1 

3 
3 

Concealing,  destroying,  mutilating,  obliter- 
ating, or  removingwiilfullyandunlawfully 
a  pubUc  record,  or  taking  and  carrying 
away  a  public  record  with  intent  to  con- 
ceal, destroy,  mutilate,  obliterate,  remove, 
or  steal  the  same. 

Conspiring  to  escape  from  confinement 

Destroying,  willfully,  public  property: 

Yes 

Yes    . 

3 

6 
6 

Yes... 

Of  a  value  of  $50  or  less,  and  more  than 

$20. 
Of  a  value  of  more  than  $50 

Yes 

Yes 

1 
5 

166 


MANUAL  FOR  COURTS-MARTIAL. 
Article  I — Continued. 


Punishments. 


Offenses. 


Dis- 
honor- 
able dis- 
charge, 
forfeiture 

of  all 
pay  and 
allow- 
ances due 
and  to 
become 
due. 


Confinement  at  hard 
labor. 


Years.    Months.     Days 


For- 
feittore 
of  two- 
thirds 
pay  per 
month. 


Months. 


For- 
feiture 
of  pay. 


Days. 


Discharging,  through  carelessness,  a  firearm  . 
Disobedience,  willful,  of  the  lawful  order  of 

a  sentinel  in  the  execution  of  his  duty. 
Disorderly  in  command,  quarters,  station, 

or  camp. 
Disorderly  under  such  circumstances  as  to 
bring  discredit  upon  the  military  service. 

Drinking  liquor  with  prisoner 

Drunk  and  disorderly  in  command,  quar- 
ters, station^  or  camp. 
Drunk  and  disorderly  under  such  circum- 
stances as  to  bring  discredit  upon  the 
military  service. 
Drunk  in  command,  quarters,  station  or 

camp. 
Drunk  under  such  circumstances  as  to  bring 
discredit  upon  the  military  service. 

Dnuik,  prisoner  foimd 

Failing  to  obey  a  lawful  order: 

O  fa  superior  ofBcer 

Of  a  noncommissioned  officer 

Of  a  sentinel 

Failing  to  pay  a  just  debt  imder  such  cir- 
cumstances as  to  bring  discredit  upon  the 
military  service. 
False  official  report  or  statement  knowingly 
made: 

By  a  noncommissioned  officer 

By  any  other  soldier 

False  swearing 

Forgery 

Gambling: 

By  a  noncommissioned  officer  with  a  per- 
son of  lower  military  rank  or  grade. 
In  command,  quarters,  station  or  camp 
in  violation  of  orders. 

Indecent  exposure  of  person 

Introducing  a  habit-forming  narcotic  drug 
into  command,  quarters,  station  or  camp: 

For  sale 

All  other  cases 

Introducing  intoxicating  liquor  into  com- 
mand, quarters,  station  or  camp: 

For  sale 

All  other  cases 

Loaning  money,  either  as  principal  or  agent, 
at  an  usurious  rate  of  interest  to  another 
in  the  military  service. 
Loitering  or  sitting  down  on  duty  by  senti- 
nel. 
Obtaining  money  or  other  property  under 


Yes. 


IS 


Yes. 


Yes. 


Yes. 
Yes. 


Yes. 


When  the  amount  obtained  Is  $20  or  less. 
Wlien  the  amount  obtained  is  $50  or  less 

and  more  than  $20. 
When  the  amount  obtained  is  more  than 
$50. 
Refusing  to  submit  to  medical  or  dental 

treatment. 
Refusing  to  submit  to  a  surgical  operation. . 

Sodomy  and  other  unnatural  crimes 

Straggling 

Striking  or  otherwise  assaulting  a  sentinel 
in  the  execution  of  his  duty. 

Subornation  of  perjury 

Threatening  to  strike  or  otherwise  assault 
or  using  other  threatening  language 
toward  a  sentinel  in  the  execution  of  his 
duty. 


Yes. 
Yes. 

Yes. 

Yes. 

Yes. 
Yes. 


Yes. 
Yes. 


OOUETS-MARTIAL — PUNISHMENTS. 
Article  I — Continued.. 


167 


Punishments. 


Dis- 
honor- 
able dis- 
charge, 
forfeiture 

ofaU 

pay  and 

aflow- 

ances  due 

and  to 

become 

due. 


Confinement  at  hard 
labor. 


Years.    Months.    Days. 


For- 
feiture 
of  two- 
thirds 
pay  per 
month. 


Months. 


For- 
feiturs 
of  pay. 


Days, 


Unclean    accouterment,    arm,    clothing, 

equipment,  or  other  military  property, 

found  with. 
Using  insulting  language  toward  a  sentinel 

in  the  execution  of  his  duty. 

Uttering  a  forged  instrument 

Violation  of  condition  of  parole  by  general 

prisoner. 


Yes. 


Abticle  II. 

EQUIVALENTS. 

Section  1.  Subject  to  the  limitations  set  forth  elsewhere  in  this  order,  sub- 
stitutions for  punishments  specified  in  Article  I  thereof  are  authorized  at  the 
discretion  of  the  court,  at  the  rates  indicated  in  the  following  table  of 
equivalents : 


Forfeiture. 

CJonflnement 
at  hard  labor. 

Detention. 

Hard  labor 
without  con- 
finement. 

1  day's  pay... 

Iday 

li  days' pay... 

IJ  days. 

Article  III. 


GENERAL   LIMITATIONS. 


Section  1.  A  court  shall  not,  by  a  single  sentence  which  does  not  include  dis- 
honorable discharge,  adjudge  against  a  soldier : 

(a)  Forfeiture  of  pay  at  a  rate  greater  than  two-thirds  of  his  pay  per  month. 

(&)  Forfeiture  of  pay  in  an  amount  greater  than  two-thirds  of  his  pay  for 
six  months. 

(c)  Confinement  at  hard  labor  for  a  period  greater  than  six  months. 

Sec  2.  A  court  shall  not,  by  a  single  sentence,  adjudge  against  a  soldier : 

(a)  Detention  of  pay  at  a  rate  greater  than  two-thirds  of  his  pay  per  month. 

(&)  Detention  of  pay  in  an  amount  greater  than  two-thirds  of  his  pay  for 
three  months. 

(c)  Hard  labor  without  confinement  for  a  period  greater  than  three  months. 

Article  IV. 


NONCOMMISSIONED   OFFICERS. 

Section  1.  A  court  shall  not,  unless  they  in  the  same  sentence  adjudge 
reduction  to  the  ranks,  adjudge  against  a  noncommissioned  officer  confinement 
at  hard  labor,  nor  hard  labor  without  confinement. 


168  MANUAL  FOB  COURTS-MARTIAL. 

Sec.  2.  A  court  may,  upon  his  conviction  of  an  offense  or  offenses  for  which 
they  may  adjudge  confinement  at  hard  labor  for  a  period  of  five  or  more  dayi, 
authorized  substitution  considered,  adjudge,  in  addition  to  the  punishments 
otherwise  authorized,  reduction  against  a  noncommissioned  oflScer  or  against 
a  private,  first  class. 

Aeticle  V. 

PBEVIOTJS   CONVICTIONS. 

Section  1.  A  general  or  special  court  shall,  upon  conviction  of  a  soldier,  be 
opened  and  shall  thereupon  ascertain  whether  there  is  evidence  of  a  previous 
conviction  or  convictions,  w^hich  has  been  referred  to  the  court  by  the  con- 
vening authority,  and,  if  there  be  such  evidence,  shall  receive  it. 

Sec.  2.  A  court  may,  under  the  authority  contained  in  section  1  of  this 
article,  receive  evidence  only  of  convictions  by  court-martial  of  an  offense  or 
offenses  committed  by  the  accused  during  his  current  enlistment  and  within 
one  year  next  preceding  the  commission  by  him  of  an  offense  of  which  he 
stands  convicted  before  the  court.  These  convictions  may  be  proved  only  by 
the  records  of  the  trials  in  which  they  were  had,  or  by  duly  authenticated 
copies  of  such  records,  or  by  duly  authenticated  copies  of  orders  promulgating 
such  trials  and  convictions. 

Aeticue  VI. 

DISHONOBABLE  DISCHABGE. 

Section  1.  A  court  may,  upon  his  conviction  of  an  offense  or  offenses 
for  none  of  which  dishonorable  discharge  and  forfeiture  of  all  pay  and  allow- 
ances due  and  to  become  due  is,  in  Article  I  of  this  order  or  by  the  cus- 
tom of  the  service,  authorized,  upon  proof  of  five  or  more  previous  convic- 
tions, adjudge  against  a  soldier,  in  addition  to  the  confinement  at  hard  labor 
without  substitution  authorized  in  said  article  or  by  the  custom  of  the  service 
for  the  offense  or  offenses  of  which  he  is  convicted,  dishonorable  discharge 
and  forfeiture  of  all  pay  and  allowances  due  and  to  become  due,  and,  in  any 
such  case  in  which  such  confinement  so  authorized  is  less  than  three  months, 
a  court  may  adjudge,  in  addition  to  such  discharge  and  forfeiture,  confinement 
at  hard  labor  for  three  months. 

Sec.  2.  A  court  may,  upon  his  conviction  upon  one  arraignment  of  two 
or  more  offenses  for  none  of  which  dishonorable  discharge,  confinement  at 
hard  labor  and  forfeiture  of  all  pay  and  allowances  due  and  to  become  due 
is,  in  Article  I  of  this  order  or  by  the  custom  of  the  service,  authorized,  but 
the  aggregate  term  of  confinement  at  hard  labor  for  which,  as  authorized  in 
said  article  or  by  the  custom  of  the  service,  without  substitution,  equals  or 
exceeds  six  months,  adjudge  against  a  soldier,  in  addition  to  the  confinement 
at  hard  labor,  without  substitution,  authorized  in  said  article  or  by  the  custom 
of  the  service  for  the  offense  or  offenses  of  which  he  is  convicted,  dishonorable 
discharge  and  forfeiture  of  all  pay  and  allowances  due  and  to  become  due. 

Abticle  VII. 

EFFECT   AND   APPLICATION    OF  THIS   OBDEB. 

Section  1.  This  order  prescribes  the  maximum  limit  of  punishment  for  each 
of  the  offenses  therein  specified,  and  thus  indicates  an  appropriate  punishment 
for  an  offense  which  is  attended  by  aggravating  circumstances,  or  after  convic- 
tion of  which  there  is  received  by  the  court  evidence  of  several  previous  con- 


COURTS-MARTIAL PUNISHMENTS.  169 

victions.     In  other  cases  the  punishment  will  be  graded  down  according  to  the 
circumstances  thereof. 

Sec.  2.  Offenses  not  herein  provided  for  remain  punishable  as  authorized  by 
statute  or  the  custom  of  the  service,  but,  in  cases  for  which  maximum  punish- 
ments are  not  prescribed,  courts  will  be  guided  by  limits  of  punishment  pre- 
scribed for  closely  related  offenses. 

Aeticue  VIII. 

ADMINISTBATIVE  BULES. 

Section  1.  Hard  labor  without  confinement,  when  imposed  as  a  punishment, 
shall  be  performed  in  addition  to  other  duties  which  fall  to  the  soldier,  and  no 
soldier  shall  be  excused  or  relieved  from  any  military  duty  for  the  purpose  of 
performing  hard  labor  without  confinement  which  has  been  imposed  as  a  pun- 
ishment, but  a  sentence  imposing  such  punishment  shall  be  considered  as  satis- 
fied when  the  soldier  shall  have  performed  hard  labor  during  available  time  in 
addition  to  performing  his  military  duties. 

Sec.  2.  Pay  detained  pursuant  to  the  sentence  of  a  court-martial  will  be 
detained  by  the  Government  until  the  soldier  is  furloughed  to  the  reserve,  dis- 
charged from  the  service,  or  mustered  out  of  active  Federal  service. 

Abticle  IX. 

DATE   ON    WHICH    OPERATIVE. 

This  order  shall  become  operative  on  March  1,  1917,  as  to  offenses  committed 
on  and  after  that  date  and  as  to  criminal  acts,  committed  prior  to  that  date, 
whose  maximum  punishment  was  not  prescribed  in  the  Executive  order  of 
September  5,  1914.  The  Executive  order  of  September  5,  1914,  published  in 
General  Orders,  No.  70,  War  Department,  1914,  prescribing  limits  of  punish- 
ment, shall  remain  operative  as  to  offenses  committed  before  March  1,  1917, 
except  as  to  criminal  acts  whose  maximum  punishment  has  been  decreased  by 
this  order,  which  will  not  be  followed  by  severer  punishment  than  is  herein- 
before prescribed. 

WooDEOW  Wilson. 

The  White  House, 

December  15,  1916, 

[Note. — Nothing  in  the  foregoing  Executive  order  is  applicable  to  the 
National  Guard  not  in  the  service  of  the  United  States.  Sec.  102,  act  of  June  3» 
1916,  (39  Stat,  208).] 


CHAPTER  XIV. 

COURTS-MARTIAL— PROCEDURE  OF  SPECIAL  AND  SUMMARY 

COURTS  AND  PROCEDURE  ON  REVISION. 


Section  I:  Special  courts-martial:  Page. 

350.  Procedure 171 

Section  II:  Summary  courts-martial: 

351.  Procedure  (a)  to  (^) 171. 

Section  III:  Procedure  on  revision: 

352.  Of  general  or  special  courts-martial 172 

353.  Of  summary  courts-martial 172 


Section  I. 
SPECIAL  COURTS-MARTIAL. 

350.  Procedure. — The  procedure  of  and  before  special  courts-martial 
will,  so  far  as  practicable,  be  identical  with  that  prescribed  for  gen- 
eral courts-martial. 

Section  II. 

SUMMARY  COURTS-MARTIAL. 

351.  Procedure. —  (a)  The  summary  court  will  be  opened  at  a  stated 
hour  daily,  except  Sundays,  for  the  trial  of  such  cases  as  have  been 
properly  referred  to  it  for  trial.  Trials  will  be  had  on  Sunday  only 
when  the  exigencies  of  the  service  make  it  necessary. 

(b)  The  summary  court  will  at  the  beginning  of  each  trial,  iri' 
the  order  of  such  trial,  give  to  and  enter  in  the  proper  place  on  the 
charges  in  the  case  a  serial  number. 

(c)  The  procedure  of  and  before  summary  courts-martial  will, 
so  far  as  practicable,  be  identical  with  that  prescribed  for  general 
courts-martial.  In  the  trial  of  a  case  the  summary  court  represents 
both  the  Government  and  the  accused.  He  will  see  to  it  that  the 
interests  of  both  are  fully  conserved. 

(d)'  When  the  accused  pleads  guilty  he  will — 

( 1 )  Explain  to  him  (a)  the  elements  constituting  the  offense  to  which 
he  has  pleaded  guilty,  and  (b)  the  maximum  punishment  therefor; 

(2)  Ask  him  whether  he  fully  understands  (a)  that  by  pleading 
guilty  thereto  he  admits  all  the  elements  of  the  crime  or  offense, 
and  (b)  that  he  may  be  punished  as  explained  to  him. 

In  any  such  case  he  will  also,  in  the  manner  below ,  stated,  make 
such  impartial  inve^igation,  if  any,  as  the  doing  of  justice  may  ap- 
pear to  require. 

(g)  In  the  absence  of  a  plea  of  guilty  he  will  make  a  full,  thorough, 
and  impartial  investigation  of  both  sides  of  the  entire  matter  before 
him.  On  behalf  of  the  Government  he  will  obtain  the  attendance  of, 
swear,  and  examine  such  witnesses,  and  will  obtain  such  other  evidence, 
documentary  and  other,  as  may  tend  or  may  appear  likely  to  tend  to 
establish  the  allegations  before  him  against  the  accused.  On  behalf 
of  the  accused  he  will,  in  the  absence  of  a  plea  of  guilty,  obtain  the 
attendance  of,  swear,  and  examine  such  witnesses,  and  will  obtain 

171 


172  MANUAL  FOB  COURTS-MAETIAL. 

Bucli  other  evidence,  documentary  and  other,  as  may  tend  to  disprove 
or  negative  guilt  of  such  allegations,  or  explain  the  acts  or  omissions 
charged,  or  show  extenuating  circumstances  or  establish  good  charac- 
ter. He  will  permit  the  accused  fully  to  examine  all  witnesses  that 
appear,  and  will,  to  the  fullest  extent,  aid  him  in  making  such  exami- 
nation. He  will,  in  every  proper  way,  encourage  and  aid  the  accused 
in  making  his  defense.  In  all  cases  he  will  extend  to  the  accused  full 
opportunity  to  testify  in  his  own  behalf  and  to  make  a  statement  in 
denial,  in  explanation,  or  in  extenuation,  and  will,  hef  ore  arriving  at  * 
a  finding,  assure  himself,  by  inquiry  of  the  accused,  that  he  has  no 
further  testimony  to  offer  and  no  further  statement  to  make. 

(/)  Having  done  so,  he  will,  as  soon  as  the  trial  is  concluded, 
arrive  at  his  findings  and  record  them  in  the  proper  place  on  the 
charges. 

(g)  In  the  event  of  the  conviction  of  a  soldier  he  will  consider  the 
evidence  of  previous  convictions,  if  any,  referred  to  him. 
•    (A)  In  any  case  of  conviction  he  will,  as  soon  as  trial  is  concluded, 
impose  sentence  and  record  it  in  the  proper  place  upon  the  charges. 

(i)  In  the  event  of  a  finding  of  not  guilty  of  all  the  charges  and 
specifications  he  will  record  an  acquittal  instead  of  a  sentence. 

(k)  Having  recorded  his  findings  and  an  acquittal  or  sentence,  he 
will  subscribe  his  name,  rank,  and  organization  assummary  court, and 
then  without  delay  transmit  the  record  of  trial  to  the  appointing 
authority. 

Section  III. 

PROCEDURE  ON  REVISION. 

352.  Of  general  or  special  courts-martial. — The  procedure  of  general 
or  special  courts-martial  when  reconvened  for  the  purpose  of  revising 
their  action  or  correcting  their  records  will  in  general  be  as  indicated 
by  the  form  of  record  of  proceedings  on  revision.  (Appendix  6.) 
The  members  of  the  court  who  participated  in  the  findings  and  sen- 
tence or  acquittal,  together  with  the  judge  advocate  and  assistant 
judge  advocate,  if  any,  will  assemble  and  the  court  will  meet.  It  is  not 
ordinarily  necessary  or  proper  that  the  accused  be  present,  but  there 
may  be  rare  cases  in  which  he  should  be  present.  The  judge  advocate 
will  read  to  the  court  the  indorsement  of  the  appointing  authority  re- 
turning the  record  and  directing  the  reconvening,  or,  if  the  record  of 
trial  by  a  special  court-martial  has  been  returned  to  him  orally  for  revi- 
sion, may  state  briefly  to  the  court  the  views  and  desires  of  the  ap- 
pointing authority  as  communicated  to  him.  The  court  is  then  closed, 
considers  and  takes  action  upon  the  matter  before  it,  is  opened,  and  ad- 
journs. As  the  action  so  to  be  taken  is  entirely  corrective,  a  case  will 
not  be  reopened  by  the  calling  or  recalling  of  witnesses  or  otherwise. 

353.  Of  summary  courts-martial. — What  has  been  said  in  respect  to 
the  procedure  on  revision  by  general  or  special  courts-martial  will,  so 
far  as  applicable,  govern  such  procedure  by  summary  courts-martiaL 


CHAPTER  XV. 
COURTS-MARTIAL— RECORDS  OF  TRIAL. 


Section  I:  General  courts-martial:  Tag^ 

354.  Record  required — ^how  authenticated , 173 

355.  What  the  record  is  and  by  whom  prepared 174 

356.  Separate  record - 174 

357.  Contents  of  record 174 

(a)  In  general 174 

(b)  In  detail.' 174 

(c)  Record  of  revision 177 

(d)  Clemency  recommendation 177 

Section  II:  Special  courts-martial: 

358.  Form  and  substance,  (a)  to  (A) ., 177 

359.  Number  of  copies 178 

360.  Not  indexed 178 

361.  Briefed 178 

362.  Bound 178 

Section  III:  Summary  courts-martial: 

363.  Form  and  substance 178 

Section  IV:  Correction  of  records  of  trial: 

364.  Records  of  general  or  special  courts-martial 178 

365.  Records  of  summary  courts-martial 179 

Section  V:  Disposition  of  records  of  trial 179 

366.  By  trial  judge-advocate 179 

(a)  Original  record 179 

(6)  Carbon  copy 179 

367.  By  appointing  authority 179 

(a)  Records  of  trial  by  general  courts-martial 179 

(6)  Records  of  trial  by  special  courts-martial 179 

(c)  Records  of  trial  by  summary  courts-martial 180 

(d)  Reports  of  trial  by  summary  courts-martial 180 

Section  VI:  Loss  of  records  of  trial: 

368.  Action  to  be  taken 180 


Section  I. 

GENERAL  COURTS-MARTIAL. 

354.  Record  required — ^how  authenticated. — Each  general  court- 
martial  shall  keep  a  separate  record  of  its  proceedings  in  the  trial 
of  each  case  brought  before  it,  and  such  record  shall  be  authenti- 
cated by  the  signature  of  the  president  and  the  judge  advocate, 
but  in  case  the  record  can  not  be  authenticated  by  th6  judge  advo- 

:173 


174  MANUAL  FOR  COURTS-MARTTAL. 

cate,  by  reason  of  his  death,  disability,  or  absence,  it  shall  be  signed 
by  the  president  and  assistant  judge  advocate,  if  any ;  and  if  there  be 
no  assistant  judge  advocate,  or  in  case  of  his  death,  disability,  or 
absence,  then  by  the  president  and  one  other  member  of  the  court. 
(A.  W.  33.) 

355.  What  the  record  is  and  by  whom  prepared. — The  legal  record  of  a 
court-martial  is  that  record  which  is  finally  approved  and  adopted 
by  the  court  as  a  body  and  authenticated  by  the  signatures  of  its 
president  and  judge  advocate.  The  record  is  prepared  by  the  judge 
advocate  under  the  direction  of  the  court,  but  the  court  as  a  whole 
is  responsible  for  it,  and  the  instrument  which  it  approves  as  such 
is  its  record,  however  the  same  may  have  been  made  up.  It  is  imma- 
terial to  the  sufficiency  of  a  record  whether  the  same  was  kept  or 
written  by  the  judge  advocate  or  by  a  clerk  or  a  reporter  acting  under 
his  direction. 

356.  Separate  record. — ^Where  several  cases  are  tried  by  the  same 
court  the  record  of  each  case  should  not  only  be  complete  and  inde- 
pendent in  itself  and  as  much  an  entirety,  both  in  form  and  in  sub- 
stance, as  if  it  were  the  only  case  tried,  but  should  contain  all  that  is 
essential  to  an  original  and  independent  official  paper,  and  should 
be  so  perfected  as  to  leave  no  material  detail  to  be  supplied  from  any 
previous  or  other  record.  Where  sentence  is  pronounced  the  record 
should  contain  everything  necessary  to  sustain  it  in  fact  and  in  law. 

357.  Contents  of  record. — (a)  In  general. — ^The  record  of  proceed- 
ings of  a  general  court-martial  will  in  each  case  show  that  all  statutory 
requirements  incident  to  that  case  have  been  complied  with ;  will  state 
a  complete  history  of  the  proceedings,  regular  and  irregular,  had  in 
open  court  in  that  case;  and  will  set  forth  the  material  conclusions 
arrived  at  in  both  open  and  closed  sessions.  The  only  acts  of  the 
court  or  members  not  properly  stated  or  set  forth  in  the  record  of 
trial  are  the  discussions,  votes,  etc.,  had  while  the  court  was  closed  for 
deliberation  upon  some  matter  such  as  a  challenge,  an  objection,  find- 
ings, sentence,  etc.  Such  discussions,  etc.,  are  no  part  of  the  formal 
record,  and,  as  to  votes  and  opinions  of  particular  members,  a  state- 
ment of  these  is  precluded  by  A.  W.  19.  It  is,  in  fact,  only  the 
result  of  a  deliberation  in  closed  session  that  is  to  be  entered  upon 
the  record. 

{!))  In  detail. — The  record  of  proceedings  in  each  case  will  show, 
among  other  things,  each  in  its  proper  place : 

1.  A  brief  of  itself  in  the  prescribed  form. 

2.  An  index  of  itself  in  the  prescribed  form. 

3.  Whether  a  carbon  copy  of  the  record  of  trial  was  prepared, 
and  if  so,  the  disposition  made  thereof. 

4.  The  place  and  date  of  each  meeting  of  the  court. 


COURTS-MARTIAL RECORDS  OF   TRIAL.  175 

6.  The  fact  and  hour  of  each  meeting. 

6.  The  number,  date,  and  source  of  the  order  appointing  the  court 
and  of  each  amendatory  order,  each  stated  at  the  proper  place  in  the 
record  of  trial. 

7.  The  fact  of  the  presence  and  the  name,  rank,  and  organization 
of  each  member,  judge  advocate  and  assistant  judge  advocate  present 
at  the  assembling  of  the  court  or  at  any  proceedings  in  revision. 

8.  The  fact  of  the  presence  and  the  name,  rank,  and  organization 
of  each  new  member,  new  judge  advocate,  or  assistant  judge  advocate 
who  begins  to  participate  therein,  together  with  citation  of  the  au- 
thority for  his  so  doing. 

9.  The  fact  of  the  absence  and  the  name,  rank,  and  organization  of 
each  member  and  the  judge  advocate  or  assistant  judge  advocate  ab- 
sent at  the  assembling  of  the  court  or  at  any  proceedings  in  revision, 
together  with  a  statement  of  the  reason  for  such  absence. 

10.  That  the  accused  was  given  opportunity  to'^introduce  'counsel, 
and  the  action  thereon. 

11.  That  the  accused  and  his  counsel,  if  any,  were  present  during 
all  the  open  sessions  of  the  court  in  his  case  except  during  such  pro- 
ceedings in  revision  as  did  not  so  require. 

12.  The  name  of  each  person,  if  any,  who  acted  as  reporter  during 
any  part  of  the  trial,  and  that  each  such  person  was  sworn. 

13.  The  name,  rank,  and  organization  of  each  member  present 
who,  during  the  trial,  announced  himself  as,  or  was  alleged  to  be, 
ineligible  to  sit  as  a  member,  together  with  the  alleged  reason  for 
such  ineligibility,  and  the  action  had  thereon. 

14.  The  name  of  each  person,  if  any,  who  acted  as  interpreter 
during  any  part  of  the  trial,  and  that  each  such  person  was  sworn. 

15.  That  the  accused  was  informed  of  his  right  to  demand  a 
copy  of  the  record  of  his  trial,  and  was  asked  whether  or  not  he  de- 
sired a  copy  thereof,  together  with  his  answer  thereto. 

16.  That  the  order  appointing  the  court  and  each  amendatory 
order  was  read  to  the  accused  in  court  and  that  he  was  given  oppor- 
tunity to  challenge  each  member  of  the  court  who  sat  as  such  during 
any  part  of  the  trial  in  his  case,  and  the  action,  if  any,  had  thereon. 

17.  That  each  member  of  the  court  who  sat  as  such  during  any 
part  of  the  trial  of  the  case  and  each  judge  advocate  and  assistant 
judge  advocate  who  appeared  before  the  court  in  the  case  was  sworn. 

18.  The  several  charges  and  specifications  upon  which  the  ac- 
cused was  arraigned. 

19.  The  name,  rank,  and  organization  of  the  officer  who  sub- 
scribed the  charges. 

20.  The  pleas  of  the  accused  to  the  several  specifications  and 
charges  upon  which  he  was  arraigned. 


176  MANUAL  FOB  COUBTS-MABTIAL. 

21.  That  after  a  plea  of  guilty  the  president — 

(a)  Explained  to  the  accused  (1)  the  elements  constituting  the 
offense  to  which  he  had  pleaded  guilty;  (2)  the  maximum  punish- 
ment for  such  offense; 

(h)  Asked  the  accused  whether  he  fully  understood  (1)  that  by 
pleading  guilty  thereto  he  admitted  all  the  elements  of  the  crime  or 
offense;  (2)  that  he  may  be  punished  as  explained  to  him. 

22.  The  answer  of  the  accused  thereto  and  the  action,  if  any,  had 
thereon. 

23.  That  the  several  witnesses  were  sworn. 

24.  That  each  witness  recalled  to  testify  was  cautioned,  upon 
being  so  recalled,  that  he  was  still  under  oath. 

25.  That  if  the  accused  was  sworn  as  a  witness  he  was  so  sworn 
at  his  own  request. 

26.  The  questions  propounded  and  the  answers  given  by  each  of 
the  several  witnesses  as  nearly  as  possible  in  the  language  used. 

27.  That  the  accused  was  given  full  opportunity  to  examine  each 
witness  who  gave  testimony. 

28.  The  fact  of  the  introduction  of  each  deposition  and  other 
paper  received  in  evidence  by  the  court,  and  that  it  is  appended  to 
the  record  properly  marked. 

29.  The  exact  and  entire  text  read  by  the  prosecution  or  defense 
from  any  pujblication  to  the  court,  together  with  the  title  of  the 
publication,  the  edition  thereof,  and  the  proper  page  number. 

30.  In  a  proper  case,  that  the  accused  had  no  testimony,  or  no 
further  testimony,  to  offer  or  no  statement  to  make,  or  both. 

31.  That  when  the  accused  did  not  testify  or  make  a  statement 
the  president  explained  to  him  in  court  that  he  might  testify  in  his 
own  behalf  if  he  so  desired,  or  make  a  statement  in  denial,  in  explana- 
tion, or  in  extenuation. 

32.  Each  motion,  objection,  argument,  statement,  etc.,  made  in 
open  court  and  the  action,  if  any,  had  thereon. 

33.  The  fact  of  each  closing  of  the  court. 

34.  The  fact  of  each  opening  of  the  court  and  that  the  accused 
and  his  counsel,  if  any,  were  present  when  the  court  was  opened. 

35.  If  a  note  was  made  of  recess  taken,  that  the  members,  the  judge 
advocate,  assistant  judge  advocate,  the  accused  and  his  counsel,  if 
any,  and  the  reporter,  if  any,  were  present  when  the  court  again 
proceeded  to  business. 

36.  In  a  joint  trial,  that  each  and  every  one  of  the  several  accused 
was  accorded  each  and  every  right  and  privilege  he  would  enjoy  if 
tried  separately,  and,  as  to  each  accused,  proper  findings  and  sentence 
or  acquittal.  (The  end  here  sought,  however,  will  so  far  as  prac- 
ticable be  attained  by  the  use  of  appropriate  general  language  with- 
out unduly  burdening  the  record  with  repetitions.) 


COURTS-MARTIAL — RECORDS  OF   TRIAL.  177 

37.  The  findings  of  each  of  the  several  specifications  and  charges 
not  disposed  of  as  a  result  of  a  special  plea. 

38.  In  case  of  the  conviction  of  a  soldier,  that  the  court  was 
opened  for  the  purpose  of  receiving  evidence  of  previous  convictions, 
and  its  action. 

39.  In  case  of  receipt  by  the  court  of  evidence  of  previous  convic- 
tions, that  a  copy  of  each  is  appended  to  the  record,  properly  marked. 

40.  In  case  of  the  conviction  of  a  soldier,  that  the  accused  was 
asked  whether  the  evidence  of  previous  convictions,  if  any,  was  correct 
and  whether  the  statement  of  his  service,  as  shown  on  the  charge 
sheet,  was  correct,  and  his  answers  thereto. 

41.  The  sentence,  acquittal,  or  other  action  finally  taken. 

42.  In  case  of  conviction  of  an  offense  for  which  the  death  pen- 
alty is  made  mandatory  by  law,  that  two-thirds  of  the  members  of 
the  court  concurred  in  the  finding. 

43.  In  case  of  a  sentence  to  suffer  death,  that  two-thirds  of  the 
members  of  the  court  concurred  in  the  sentence. 

44.  The  adjournment. 

45.  That  the  judge  advocate,  or,  in  a  proper  case,  the  assistant 
judge  advocate,  subscribed  each  day's  proceedings. 

46.  That  the  president  and  the  judge  advocate,  or,  in  a  proper 
case,  the  president  and  an  assistant  judge  advocate,  or,  in  a  proper 
case,  the  president  and  one  other  member,  subscribed  the  record.  (In 
any  case  in  which  a  person  other  than  the  judge  advocate  subscribes 
the  record  in  lieu  of  the  judge  advocate,  the  facts  which  make  such 
action  necessary  will  appear.) 

47.  In  case  the  judge  advocate  has  recorded  the  findings  and  sen- 
tence with  a  typewriter,  a  certificate  that  he  recorded  the  findings 
and  sentence  of  the  court. 

(c)  Record  of  revision, — Subject  to  the  modifications  indicated  by 
the  form  for  proceedings  in  revision,  the  foregoing  will,  so  far  as 
applicable,  govern  in  respect  to  such  proceedings. 

(d)  Clemency  recommendation. — A  recommendation  to  clemency 
will  not  be  embodied  in  the  record  proper,  but  will  be  bound  into  the 
record  immediately  after  the  exhibits.     (See  par.  332.) 

Section  II. 
SPECIAL  COURTS-MARTIAL. 

368.  Form  and  substance. —  (a)  Except  as  otherwise  indicated  by  the 
form  for  record  of  trial  by  special  court,  or  elsewhere,  the  require- 
ments in  respect  of  the  form  and  substance  of  such  records  are  in  gen- 
eral the  same  as  for  records  of  trial  by  general  courts-martial. 

(h)  Neither  oral  testimony  received  by  the  court  nor  statements 
nor  arguments  made  will  be  recorded  unless  herein  specifically  re- 
quired or  ordered  by  competent  authority.     (See  par.  154  (d).) 

91487°— 17 13 


178  MANUAL  FOE   COURTS-MARTIAL. 

(c)  Documentary  evidence  received  by  the  court,  the  originals  of 
which  can  properly  be  appended  to  the  record,  such  as  depositions, 
certain  letters,  recommendations  to  clemency,  and  other  similar 
papers,  will  be  so  appended. 

(d)  Neither  the  originals  nor  copies  of  writings,  the  originals  of 
which  can  not  properly  be  appended  to  the  record,  such  as  certificates 
of  discharge,  recommendations  as  to  character,  and  similar  papers, 
need  be  so  appended. 

(e)  If  a  special  plea  is  made,  the  record  will  set  out  in  full  the 
proceedings  had  thereon,  including  all  testimony  taken  thereon  and 
statements  made  relative  thereto,  as  well  as  the  disposition  thereof 
made  by  the  court. 

(/)  Evidence  of  previous  convictions,  if  any,  will  not  be  appended 
to  the  record,  but  will  be  returned  by  the  trial  judge  advocate  with 
the  record  of  trial  to  the  appointing  authority. 

(g)  No  certificate  that  the  judge  advocate  recorded  typewritten 
findings  or  sentence  is  required. 

(h)  The  record  will,  at  the  end,  contain  sufficient  ^ace  for  the 
action  of  the  reviewing  authority.  If  necessary  for  this  purpose,  an 
extra  sheet  will  be  included. 

359.  Number  of  copies. — One  copy  only  of  the  record  will  be  pre- 
pared. 

360.  Not  indexed. — The  record  will  not  be  indexed. 

361.  Briefed. — The  record  wiU  be  briefed  as  prescribed  for  the 
record  of  a  general  court-martial. 

362.  Bound. — The  record  will  be  securely  bound.  The  method  of 
binding  is  not  prescribed,  but  it  must  be  such  as  will  securely  fasten 
together  all  the  leaves  and  parts  that  comprise  the  record.  Easily 
removable  clips  or  paper  fasteners  will  not  be  used  for  this  purpose. 

Section  III. 

SUMMARY  COURTS-MARTIAL. 

363.  Form  and  substance. — The  requirements  in  respect  of  the  form 
and  substance  of  records  of  trial  by  summary  court  are  indicated 
in  the  form  for  record  of  trial  by  summary  court.  The  findings  and 
sentence  or  acquittal  only  are  required  to  be  recorded  and  subscribed 
by  the  summary  court  as  such.  The  action  of  the  commanding  officer 
on  the  record,  with  date  and  his  signature,  completes  the  record, 
except  when  approval  by  superior  authority  is  required. 

Section  IV. 
CORRECTION  OF  RECORDS  OF  TRIAL. 

364.  Records  of  general  or  special  courts-martial. — A  record  of  trial 
by  general  or  special  court-martial  which  by  reason  of  omission, 
error,  or  other  defect  is  substantially  incomplete  or  incorrect,  or  which 


COURTS- MARTIAL RECORDS  OF   TRIAL.  179 

in  the  opinion  of  the  appointing  authority  shows  improper  action 
by  the  court,  may  be  returned  by  the  appointing  authority  to  the 
president  of  the  court,  directing  that  the  court  be  reconvened  for 
such  action  as  may  be  appropriate.  In  any  such  case  the  defective 
part  of  the  record  will  be  left  unchanged  and  without  erasure  or 
interlineation,  and  the  record  of  proceedings  in  revision  will  show 
specifically,  ordinarily  by  page  and  line,  the  part  of  the  original 
record  that  is  changed  and  the  change  made.     (See  par.  352.) 

365.  Records  of  summary  courts-martial. — A  record  of  trial  by  sum- 
mary court  which  by  reason  of  omission,  error,  or  other  defect,  is  sub- 
stantially incomplete  or  incorrect,  or  which,  in  the  opinion  of  the  ap- 
pointing authority,  shows  improper  action  by  the  court,  may  be  re- 
turned by  the  appointing  authority  to  the  summary  court  for  such 
action  as  may  be  appropriate.     (See  par.  353.) 

Section  V. 

DISPOSITION  OF  RECORDS  OF  TRIAL. 

366.  By  trial  judge  advocate. — (a)  Original  record. — The  judge  advo- 
cate of  a  court-martial  shall,  with  such  expedition  as  circumstances 
may  permit,  forward  to  the  appointing  authority,  or  to  his  successor 
in  command,  the  original  record  of  the  proceedings  of  the  court  in 
the  trial  of  each  case.  The  record  should  be  forwarded  as  an  in- 
closure  to  an  indorsement  by  the  judge  advocate,  returning  to  the 
appointing  authority  the  charges  and  other  papers  referred  to  him, 
and  forwarding  at  the  same  time  the  required  copy  of  the  reporter's 
voucher.  The  original  record  of  the  proceedings  of  a  general  court- 
martial  appointed  by  the  President  will  be  sent  by  the  trial  judge 
advocate  directly  to  the  Judge  Advocate  General  of  the  Army. 

(6)  Carbon  copy. — The  judge  advocate  of  a  general  court-martial 
shall,  if  the  accused  so  desires,  deliver  to  the  accused,  after  it  has  been 
corrected,  completed,  and  certified  as  a  true  copy  except  as  to  find- 
ings, sentence,  and  exhibits  not  copied,  the  carbon  copy,  when  one  is 
prepared,  of  the  record  of  his  trial. 

367.  By  appointing  authority. — (a)  Records  of  trial  by  general 
courts-nbartial. — After  having  been  acted  upon  by  the  officer  appoint- 
ing the  court,  or  by  the  officer  commanding  for  the  time  being,  the 
record  of  each  trial  by  general  court-martial,  with  the  decisions  and 
orders  of  the  appointing  authority  made  thereon,  accompanied  by 
the  statement  of  service,  if  there  be  any,  and  five  copies  of  the  order, 
if  there  be  any,  promulgating  the  case,  will  be  transmitted  directly 
to  the  Judge  Advocate  General  of  the  Army. 

{b)  Records  of  trial  by  special  courts-martial, — After  having  been 
acted  upon  by  the  officer  appointing  the  court,  or  by  the  officer  com- 
manding for  the  time  being,  the  record  of  each  trial  by  special 


180  MANUAL  FOB  COURTS-MARTIAL. 

court-martial,  accompanied  by  a  copy  of  the  order  publishing  the 
case,  will  be  forwarded,  ordinarily  without  indorsement  or  letter  of 
transmittal,  to  the  officer  exercising  general  court-martial  jurisdiction 
over  the  conmiand,  there  to  be  filed  in  the  office  of  the  judge  advocate 
for  a  period  of  two  years,  at  the  end  of  which  time  it  may  be  de- 
stroyed. 

(c)  Records  of  trial  hy  summary  courts-martial. — The  several  rec- 
ords of  trial  by  summary  courts-martial  within  a  command  shall  be 
filed  together  in  the  office  of  the  commanding  officer  and  shall  consti- 
tute the  summary-court  record  of  the  command. 

{d)  Reports  of  trial  hy  summary  courts-maHial, — The  report  of 
trial  by  summary  court  (copy  of  record  of  trial)  w^ill,  with  the  least 
practicable  delay  after  action  has  been  taken  on  the  sentence,  be  com- 
pleted and  transmitted  to  the  officer  exercising  general  court-martial 
jurisdiction  over  the  command,  there  to  be  filed  in  the  office  of  the 
judge  advocate  for  a  period  of  two  years,  at  the  end  of  which  time  it 
may  be  destroyed. 

Section  VI. 

LOSS  OF  RECORDS  OF  TRIAL. 

368.  Action  to  be  taken. — When,  prior  to  miction  by  the  reviewing 
authority,  a  record  of  trial  by  court-martial  is  lost  or  destroyed,  a 
new  record  of  trial  in  the  case  will,  if  practicable,  be  prepared  and 
will  become  the  record  of  trial  in  the  case.  Such  new  record  will, 
however,  only  be  prepared  when  the  extant  original  notes  or  other 
sources  are  such  as  to  enable  the  preparation  of  a  complete  and  ac- 
curate record  of  the  case.  In  any  case  of  loss  of  a  record  of  trial  by 
court-martial  the  summary  court,  judge  advocate,  or  other  proper 
person  will  fully  inform  the  appointing  authority  as  to  the  facts  and 
as  to  the  action,  if  any,  taken. 


CHAPTEE  XVI. 

COURTS-MARTIAL— ACTION  BY  APPOINTING  OR 
SUPERIOR  AUTHORITY. 


Section  I:  Action  on  the  proceedings:  Page. 

360.  Appointing  authority 182 

370.  Record  of  action  by  appointing  authority. 182 

371.  Sentence  not  effective  until  approved - 182 

372.  Effect  of  approval  and  disapproval 182 

373.  Manner  of  approval 182 

374.  The  officer  commanding  for  the  time  being 183 

375.  Action  when  accused  is  transferred  to  another  department 183 

376.  Appointing  authority  must  act  in  person 183 

377.  Powers  incident  to  power  to  approve 184 

378.  Confirmation  of  sentences 185 

379.  Powers  incident  to  power  to  confirm 185 

380.  Mtigation  of  punishment — definition 186 

381.  Mitigation  or  remission  of  sentences 186 

382.  Mitigation,  when  permissible 186 

383.  Effect  of  remission  at  time  of  approval 186 

384.  Commutation  of  sentences 186 

385.  Adding  to  sentences 187 

386.  Sentences  in  excess  of  legal  limit 187 

387.  Action  on  sentence  may  be  modified  before  publication 187 

388.  Where  conviction  of  desertion  is  disapproved  grounds  to  be  stated 187 

389.  Place  of  confinement — change  of '. 187 

390.  Loss  of  files 187 

391.  Suspension  of  sentences  until  pleasure  of  President  be  known 188 

392.  Suspension  of  sentences  not  involving  dishonorable  discharge 188 

393.  Suspension  of  sentences  of  dishonorable  discharge 188 

394.  Place  of  confinement  to  be  designated  by  reviewing  authority 189 

395.  Forms  for  action  on  sentence  by  reviewing  authority 189 

396.  When  confinement  in  a  penitentiary  may  be  directed 189 

397.  When  confinement  in  disciplinary  barracks  will  be  directed 189 

398.  When  confinement  in  post  will  be  directed. 190 

399.  Cooperation  of  reviewing  authorities 190 

400.  Court-martial  orders 190 

Section  II:  Action  after  promulgation  of  sentence: 

401.  Date  of  beginning  of  sentence 190 

402.  Applications  for  clemency 191 

403.  Remission  of  suspended  sentence  of  dishonorable  discharge 191 

404.  Clemency  applications  limited  to  one  in  six  months 191 

181 


182  MANUAL  FOR  COURTS-MARTXAL. 

Section  I. 
ACTION   ON   THE   PROCEEDINGS. 

369.  Appointing  authority. — The  term  appointing  authority  is  em- 
ployed to  designate  the  officer  whose  province  and  duty  it  is  to  take 
action  upon  the  proceedings  of  a  court-martial  after  the  same  are 
terminated,  and,  when  the  record  is  transmitted  to  him  for  such  ac- 
tion, to  approve  or  disapprove  the  sentence  or  acquittal.  This 
officer  is  ordinarily  the  commander  who  has  convened  the  court.  In 
his  absence,  however,  or  where  the  command  has  been  otherwise 
changed,  his  successor  in  command,  or,  in  the  language  of  A.  W.  46, 
"the  officer  commanding  for  the  time  being"  is  invested  (by  that 
article)  with  the  same  authority  to  pass  upon  the  proceedings  and 
order  the  execution  of  the  sentence  in  a  case  of  conviction.  (Digest, 
p.  554,  XIV,  A,  1.) 

370.  Record  of  action  by  appointing  authority. — ^Upon  the  receipt  of 
the  proceedings  by  the  appointing  authority,  he  will  state  at  the  end 
thereof  in  each  case  his  decisions  and  orders. 

371.  Sentence  not  effective  until  approved. — ^No  sentence  of  a  court- 
martial  shall  be  carried  into  execution  until  the  same  shall  have 
been  approved  by  the  officer  appointing  the  court  or  by  the  officer 
commanding  for  the  time  being.  (A.  W.  46.)  The  acquittal  of  the 
accused  does  not  entitle  him  to  be  released  at  once  from  confinement 
as  in  cases  before  civil  courts.  The  acquittal  is  not  effective  until 
it  has  been  acted  on  by  the  proper  reviewing  authority.  But  the 
announcement  of  the  result  of  trial  in  orders  is  not  essential  to  the 
validity  of  the  sentence  or  acquittal.  It  is  not  necessary  for  the 
reviewing  authority  to  approve  the  -findings  and  proceedmgs, 

372.  Effect  of  approval  and  disapproval. — While  approval  gives  life 
and  operation  to  a  sentence,  disapproval,  on  the  other  hand,  nullifies 
it.  A  disapproval  of  the  sentence  of  a  court-martial  by  the  reviewing 
authority  is  not  a  mere  expression  of  disapprobation  but  is  a  final 
determinate  act  putting  an  end  to  the  proceedings  in  the  particular 
case  and  rendering  them  entirely  nugatory  and  inoperative ;  and  the 
legal  effect  of  a  disapproval  is  the  same  whether  or  not  the  officer 
disapproving  is  authorized  finally  to  confirm  the  sentence.  But  to 
be  thus  operative  a  disapproval  should  be  expressed.  The  effect  of 
the  entire  disapproval  of  a  sentence  is  not  merely  to  annul  the  same 
as  such  but  also  to  prevent  the  accruing  of  any  disability  or  for- 
feiture, which  would  have  been  incidental  upon  an  approval.  (Di- 
gest, p.  563,  XIV,  E,  9,  b,  (1).) 

373.  Manner  of  approval. — The  approval  of  the  sentence  should  prop- 
erly be  of  a  formal  character.  The  article  requires  the  sentence  to 
be  approved.  A  formal  approval  of  the  findings  only  does  not 
meet  the  requirement  of  the  article.     The  sentence  should  be  ap- 


COURTS-MARTIAL — APPOINTING  OR  SUPERIOR  AUTHORITY.     183 

proved  by  "  the  officer  appointing  the  court,"  or  the  officer  command- 
ing for  the  time  being,  although — as  in  a  case  of  a  sentence  of  dis- 
missal in  time  of  peace — he  may  not  be  empowered  finally  to  confirm 
and  give  effect  to  the  sentence.  His  approval  is  required  as  showing 
that  he  does  not,  as  he  is  authorized  to  do,  disapprove,  (Digest,  p. 
174,  CIV,  A,  1,  and  A,  2.) 

374.  The  officer  commanding  for  the  time  being. — ^The  "officer  com- 
manding for  the  time  being,"  indicated  in  A.  W.  46,  is  an  officer  who 
has  succeeded  to  the  command  of  the  officer  who  appointed  the  court ; 
as  where  the  latter  has  been  regularly  relieved  and  another  officer  as- 
signed to  the  command;  or  where  the  command  of  the  appointing 
officer  has  been  discontinued,  and  merged  in  a  larger  or  other  com- 
mand, at  some  time  before  the  proceedings  of  the  court  are  com- 
pleted and  required  to  be  acted  upon.  Thus  where,  under  these  cir- 
cumstances, a  separate  brigade  has  ceased  to  exist  as  a  distinctive  or- 
ganization and  been  merged  in  a  division,  or  a  division  has  been  simi- 
larly merged  in  an  army  or  department,  the  commander  of  the  di- 
vision in  the  one  case  and  of  the  army  or  department  in  the  other,  is 
"  the  officer  commanding  for  the  time  being,"  in  the  sense  of  the  ar- 
ticle. So  where  a  court  was  convened  by  a  division  commander,  but 
before  the  reviewing  authority  had  acted  upon  the  sentence  the  di- 
vision was  discontinued  and  the  organizations  composing  it  were  dis- 
tributed among  the  divisions  of  another  corps,  it  was  held  that  the 
commander  of  this  other  corps  was  the  officer  "  commanding  for  the 
time  being."  So,  where,  before  the  proceedings  of  a  special  court 
convened  by  a  post  commander  were  completed,  the  post  command 
had  ceased  to  exist  and  the  command  became  distributed  in  the  de- 
partment, it  was  held  that  the  department  commander,  as  the  legal 
successor  of  the  post  commander,  was  the  proper  authority  to  approve 
the  sentence.  (Digest,  p.  174,  CIV,  C,  1;  p.  175,  CIV,  C,  2,  and  see 
C,4.) 

375.  Action  when  accused  is  transferred  to  another  department. — 
Where  an  accused  who  has  been  tried  by  general  court-martial  pro- 
ceeds with  his  command,  from  the  department  in  which  he  has  been 
tried  to  another  department,  before  action  has  been  taken  on  his  case 
by  the  reviewing  authority,  the  commanding  general  of  the  depart- 
ment in  which  he  has  been  tried  is  the  proper  reviewing  authority  of 
the  case.     (Digest,  p.  554,  XIV,  A,  3.) 

376.  Appointing  authority  must  act  in  person. — The  appointing  au- 
thority can  not  delegate  to  an  inferior  or  other  officer  his  function  as 
reviewing  authority  as  conferred  by  the  forty-sixth  article  of  war; 
nor  can  he  authorize  a  staff  or  other  officer  to  subscribe  for  him  his 
decision  and  orders  on  the  proceedings.  He  will  sign  in  his  own 
hand  the  action  taken  by  him  on  the  proceedings,  his  rank  and  the 
fact  that  he  is  the  commanding  officer  appearing  after  his  signature. 


184  MANUAL  FOR  COUBTS-MARTTAL. 

377.  Powers  incident  to  power  to  approve. — The  power  to  approve  the 
sentence  of  a  court-martial  shall  be  held  to  include : 

(a)  The  power  to  approve  or  disapprove  a  finding  and  to  ap- 
prove only  so  much  of  a  finding  of  guilty  of  a  particular  offense 
as  involves  a  finding  of  guilty  of  a  lesser  included  offense  when,  in 
the  opinion  of  the  authority  having  power  to  approve,  the  evidence 
of  record  requires  a  finding  of  only  the  lesser  degree  of  guilt ;  and 

(h)  The  power  to  approve  or  disapprove  the  whole  or  any  part 
of  the  sentence.     (A.  W.  47.) 

The  authority  here  conferred  to  approve  only  so  much  of  a  find- 
ing of  guilty  as  involves  a  finding  of  guilty  of  a  lesser  included  of- 
fense is  coextensive  with  the  power  of  courts-martial  to  convict  of 
lesser  included  offenses.  The  more  frequent  occasions  for  the  ex- 
ercise of  this  authority  are  indicated  below. 

(1)  Affray. 

(a)  Assault. 

(h)  Breach  of  peace  (disorder). 

(2)  Assault  with  intent  to  commit  murder. 

(a)  Any  of  the  minor  degrees  of  assault 

(3)  Battery. 

(a)  Assault. 

(4)  Murder. 

(a)  Manslaughter. 

Voluntary. 

Involuntary. 
(h)  Attempt  to  commit. 

(c)  Felonious  assault. 

(d)  Assault  and  battery. 

(5)  Mayhem. 

(a)  Assault  with  intent  to  commit. 
(h)  Assault  and  battery. 

(6)  Eape. 

(a)  Assault  with  intent  to  commit  rape. 
(h)  Assault  and  battery. 
(c)  Assault. 

(7)  Eobbery. 

(a)  Assault  with  intent  to  rob. 
(h)  Larceny  from  the  person. 

(c)  Assault  and  battery. 

(d)  Assault. 

(8)  Desertion. 

(a)  Attempt  to  desert. 
(&)  Absence  without  leave. 

(9)  Willful  disobedience  of  superior  officer^ 

(a)  Failure  to  obey. 


COURTS-MARTIAL — APPOINTING  OR  SUPERIOR  AUTHORITY.     185 

(10)  Willful  disobedience  of  noncommissioned  officer. 

(a)  Failure  to  obey. 

(11)  Eefusal  to  receive  and  keep  prisoners. 

(a)  Failure  to  receive  and  keep. 

(12)  Quitting  post  to  plunder  or  pillage. 

(a)  Quitting  post. 

(13)  Drunk  on  duty. 

(a)  Drunk. 

(14)  Conduct  unbecoming  an  officer  and  gentleman. 

(a)  Conduct  to  the  prejudice  of  good  order  and  military 
discipline. 

378.  Confirmation  of  sentences. — ^In  the  following  cases  confirmation 
by  the  President  is  required  before  the  sentence  of  a  court-martial  is 
carried  into  execution: 

(a)  Any  sentence  respecting  a  general  officer. 

(h)  Any  sentence  extending  to  the  dismissal  of  an  officer  except 
that  in  time  of  war  a  sentence  extending  to  the  dismissal  of  an 
officer  below  the  grade  of  a  brigadier  general  may  be  carried  into 
execution  upon  confirmation  by  the  commanding  general  of  the 
Army  in  the  field  or  by  the  commanding  general  of  the  territorial 
department  or  division. 

(g)  Any  sentence  extending  to  the  suspension  or  dismissal  of  a 
cadet,  and 

(d)  Any  sentence  of  death,  except  in  the  cases  of  persons  convicted 
in  time  of  war  of  murder,  rape,  mutiny,  desertion,  or  as  spies,  and  in 
such  excepted  cases  a  sentence  of  death  may  be  carried  into  execution 
upon  confirmation  of  the  commanding  general  of  the  Army  in  the 
field  or  by  the  commanding  general  of  the  territorial  department  or 
division. 

When  the  authority  competent  to  confirm  the  sentence  has  already 
acted  as  the  approving  authority  no  additional  confirmation  by  him 
is  necessary.    (A.  W.  48.) 

[Note. — For  statement  by  whom  a  sentence  of  dismissal  from  service  or  dis- 
honorable discharge  imposed  by  National  Guard  courts-martial,  not  in  the  serv- 
ice of  the  United  States,  must  be  approved  before  its  execution,  see  sec.  107, 
act  of  June  3,  1916,  39  Stat.,  166,  Appendix  2,  post.^ 

379.  Powers  incident  to  power  to  confirm. — The  power  to  confirm  the 
sentence  of  a  court-martial  shall  be  held  to  include — 

(a)  The  power  to  confirm  or  disapprove  a  finding,  and  to  confirm 
so  much  only  of  a  finding  of  guilty  of  a  particular  offense  as  involves 
a  finding  of  guilty  of  a  lesser  included  offense  when,  in  the  opinion 
of  the  authority  having  power  to  confirm,  the  evidence  of  record 
requires  a  finding  of  only  the  lesser  degree  of  guilt ;  and 

(h)  The  power  to  confirm  or  disapprove  the  whole  or  any  part  of 
the  sentence.    (A.  W.  49.)  . 


186  MANUAL  FOR  COURTS-MARTIAL, 

The  manner  of  the  exercise  of  the  power  conferred  upon  confirm- 
ing authorities  is  indicated  in  the  remarks  in  paragraph  377  relating 
to  the  power  incident  to  approve  a  sentence  as  provided  for  under 
A.  W.  47. 

380.  Mitigation  of  punishment — ^Definition. — By  mitigating  a  punish- 
ment is  meant  a  reduction  in  quantity  or  quality,  the  general  nature 
of  the  punishment  remaining  the  same.     (Digest,  p.  177,  CXII,  B.) 

381.  Mitigation  or  remission  of  sentences. — The  power  to  order  the 
execution  of  the  sentence  adjudged  by  a  court-martial  shall  be  held 
to  include  inter  alia  the  power  to  mitigate  or  remit  the  whole  or 
any  part  of  the  sentence,  but  no  sentence  of  dismissal  of  an  officer 
and  no  sentence  of  death  shall  be  mitigated  or  remitted  by  any 
authority  inferior  to  the  President.  Any  unexecuted  portion  of  a 
sentence  adjudged  by  a  court-martial  may  be  mitigated  or  remitted 
by  the  military  authority  competent  to  appoint,  for  the  command, 
exclusive  of  penitentiaries  and  the  United  States  Disciplinary  Bar- 
racks, in  which  the  person  under  sentence  is  held,  a  court  of  the 
kind  that  imposed  the  sentence,  and  the  same  power  may  be  exer- 
cised by  superior  military  authority;  but  no  sentence  extending  to 
the  dismissal  of  an  officer  or  loss  of  files,  no  sentence  of  death,  and 
no  sentence  approved  or  confirmed  by  the  President  shall  be  remitted 
or  mitigated  by  any  other  authority.  The  power  of  remission  and 
mitigation  extends  to  all  uncollected  forfeitures  adjudged  by  sen- 
tence of  a  court-martial.    (A.  W.  50.) 

382.  Mitigation,  when  permissible. — A  sentence  providing  for  dis- 
honorable discharge  only  can  not  be  mitigated.  Subject  to  the  limi- 
tations expressed  in  the  Executive  order  prescribing  maximum  limits 
of  punishment,  forfeiture  of  pay  adjudged  by  a  court-martial  may  be 
mitigated  to  detention  of  pay  for  a  like  period,  or  less,  and  confine- 
ment at  hard  labor  may  be  mitigated  to  hard  labor  without  confine- 
ment for  a  like  period  or  less.  A  sentence  of  dishonorable  discharge, 
forfeiture  of  all  pay  and  allowances  due  and  to  become  due,  and 
confinement  at  hard  labor  for  a  definite  period  may  be  mitigated  to 
confinement  at  hard  labor  and  a  forfeiture  of  two-thirds  of  the 
soldier's  pay  per  month  for  a  period  not  exceeding  that  prescribed 
in  the  sentence. 

383.  Effect  of  remission  at  time  of  approval. — The  action  of  a  review- 
ing authority  in  approving  a  sentence  and  simultaneously  remitting 
a  portion  thereof  is  legally  equivalent  to  approving  only  the  sentence 
as  reduced.     (Bui.  12,  p.  5,  War  Dept.,  1912.) 

384.  Commutation  of  sentences. — The  power  to  commute  sentencea 
imposed  by  military  tribunals,  not  being  vested  in  military  com- 
manders, can  be  exercised  by  the  President  alone.  Therefore  a 
department  commander  can  not  commute  to  confinement  at  hard 
labor  a  sentence  of  dishonorable  discharge  awarded  an  enlisted  man. 


COURTS-MARTIAL — ^APPOINTING  OR  SUPERIOR  AUTHORITY.     187 

386.  Adding  to  sentences. — Neither  the  reviewing  authority  nor  any 
other  officer  is  authorized  to  add  to  the  punishment  imposed  by  a 
court-martial.  Where  post  orders  classify  all  soldiers  at  a  post 
according  to  their  conduct,  and  provide  that  soldiers  undergoing 
sentence  of  a  court-martial  will  be  denied  pass  privileges  until  the 
sentence  is  completed,  such  a  provision  adds  to  the  punishment 
and  is  unlawful.     (Bui.  46,  p.  7,  War  Dept.,  1914.) 

386.  Sentences  in  excess  of  legal  limit. — Where  a  sentence  in  excess  of 
the  legal  limit  is  divisible,  such  part  as  is  legal  may  be  approved  and 
executed.  (Digest,  p.  564,  XIV,  E,  9,  c.)  Thus:  When  a  sentence 
to  confinement,  hard  labor  without  confinement,  forfeiture,  or  de- 
tention of  pay  is  in  excess  of  the  legal  limit,  the  part  within  the  limit 
is  legal  and  may  be  executed. 

387.  Action  on  sentence  may  be  modified  before  publication. — Action 
taken  by  a  reviewing  officer  upon  the  proceedings  and  sentence  of 
a  court-martial  may  be  recalled  and  modified  before  it  has  been 
published  and  the  party  to  be  affected  has  been  duly  notified  of  the 
same.  After  such  notice  the  action  is  beyond  recall.  An  approval 
can  not  then  be  substituted  for  a  disapproval  or  vice  versa.  (Digest, 
p.  565,  XIV,  E,  9  e.) 

388.  Where  conviction  of  desertion  is  disapproved — Grounds  to  be 
itated. — ^Where  the  reviewing  authority  disapproves  a  sentence  for 
desertion  he  should  indicate  in  his  review  whether  his  disapproval 
is  based  upon  his  belief  that  the  evidence  does  not  show  an  intent  to 
deseiii,  or  is  for  some  other  reason  that  assumes  the  accused  was 
guilty  as  charged.  The  reason  for  so  indicating  the  grounds  of  his 
disapproval  is  to  enable  the  Quartermaster  Corps  to  decide  whether 
the  pay  and  allowances  due  at  date  of  alleged  desertion  should  be 
forfeited  and  whether  the  reward  paid  for  apprehending  the  deserter, 
and  the  expenses  incurred  by  the  Government  in  transporting  him 
from  point  of  apprehension,  delivery,  or  surrender  to  the  station 
of  his  company  or  detachment  or  to  the  place  of  trial,  including 
the  cost  of  transportation  of  the  guard,  should  be  set  against  the 
alleged  deserter's  pay,  under  A.  K.  127,  1913.  (12  Comp.,  328;  15 
idem.,  661.) 

389.  Place  of  confinement — Change  of. — The  authority  which  has 
designated  the  place  of  confinement  or  higher  authority  may  change 
the  place  of  confinement  of  any  prisoner  under  the  jurisdiction  of 
such  authority;  but  when  a  military  prison  or  post  has  been  desig- 
nated as  the  place  of  confinement  of  a  prisoner  under  sentence,  no 
power  is  competent  to  increase  the  punishment  by  designating  a 
penitentiary  as  the  place  of  confinement. 

390.  Loss  of  files. — Where  a  court-martial  convened  by  a  department 
commander  for  the  trial  of  an  officer  sentences  the  accused  to  the 


188  MANUAL  FOE  COURTS-MARTIAL. 

punishment  of  a  loss  of  files,  the  approval  of  the  appointing 
authority  is  sufficient  to  give  full  effect  to  the  sentence,  and  no  action 
by  superior  authority  can  add  anything  to  its  effect  or  conclusiveness. 
Confirmation  by  the  President  is  not  essential  to  the  execution  of 
such  a  sentence;  and  the  fact  that  the  same  involves  a  change 
in  the  Army  Register  does  not  make  requisite  or  proper  a  revision 
of  the  case  by  the  War  Department.  The  department  commander, 
however,  can  not  restore  the  files,  such  action  can  be  taken  only  by 
the  President.     {See  A.  W.  50.) 

391.  Suspension  of  sentences  until  pleasure  of  President  be  known. — 
Any  officer  who  has  authority  to  carry  into  execution  the  sentence 
of  death,  or  of  dismissal  of  an  officer,  may  suspend  the  same  until  the 
pleasure  of  the  President  shall  be  known ;  and  in  such  case,  he  shall 
immediately  transmit  to  the  President  a  copy  of  the  order  of  sus- 
pension, together  with  a  copy  of  the  proceedings  of  the  court.  (A. 
W.  51.) 

392.  Suspension  of  sentences  not  involving  dishonorable  discharge. — 
The  authority  competent  to  order  the  execution  of  a  sentence  ad- 
judged by  a  court-martial  may,  if  the  sentence  involve  neither  dis- 
missal nor  dishonorable  discharge,  suspend  the  execution  of  the 
sentence  in  so  far  as  it  relates  to  the  forfeiture  of  pay  or  to  con- 
finement, or  to  both ;  and  the  person  under  sentence  may  be  restored 
to  duty  during  the  suspension  of  confinement.  At  any  time  within 
one  year  after  the  date  of  the  order  of  suspension  such  order  may, 
for  sufficient  cause,  be  vacated  and  the  execution  of  the  sentence 
directed  by  the  military  authority  competent  to  order  the  execution 
of  like  sentences  in  the  command,  exclusive  of  penitentiaries  and  the 
United  States  Disciplinary  Barracks,  to  which  the  person  under 
sentence  belongs  or  in  which  he  may  be  found;  but  if  the  order 
of  suspension  be  not  vacated  within  one  year  after  the  date 
thereof  the  suspended  sentence  shall  be  held  to  have  been  remitted. 
(A.  W.  53.) 

393.  Suspension  of  sentences  of  dishonorable  discharge. — The  authority 
competent  to  order  the  execution  of  a  sentence  including  dishonor- 
able discharge  may  suspend  the  execution  of  the  dishonorable  dis- 
charge until  the  soldier's  release  from  confinement ;  but  the  order  of 
suspension  may  be  vacated  at  any  time  and  the  execution  of  the 
dishonorable  discharge  directed  by  the  officer  having  general  court- 
martial  jurisdiction  over  the  command,  exclusive  of  penitentiaries 
and  the  United  States  Disciplinary  Barracks  in  which  the  soldier 
is  held,  or  by  the  Secretary  of  War.  (A.  W.  52.)  The  object  in 
seeking  the  legislation  contained  in  A.  W.  52  was  to  further  the  plan 
of  giving  soldiers  convicted  of  purely  military  offenses  an  oppor- 
tunity to  reclaim  themselves  and  gain  restoration  to  the  colors 


COURTS-MARTIAL — APPOINTING  OR  SUPERIOR  AUTHORITY.     189 

through  service  in  disciplinary  companies.  Reviewing  authorities 
will  aid  in  the  accomplishment  of  this  object  by  discriminating  action 
in  passing  upon  sentences. 

394.  Place  of  confinement  to  be  designated  by  reviewing  authority. — 
When  the  sentence  of  a  general  court-martial  prescribes  dishonor- 
able discharge  and  confinement,  so  much  of  the  sentence  as  relates 
to  confinement  will  be  expressed  in  substantially  the  following  form : 

To  be  confined  at  hard  labor  at  such  place  as  the  reviewing  authority  may 

direct  for  [leaving  to  the  reviewing  authority  the  designation  of  the 

j)lace  of  confinement.] 

395.  Forms  for  action  on  sentence  by  reviewing  authority. —  (See 
Appendix  10.) 

396.  When  confinement  in  a  penitentiary  may  be  directed.— Except  for- 
desertion  in  time  of  war,  repeated  desertion  in  time  of  peace,  and 
mutiny,  no  person  shall  under  the  sentence  of  a  court-martial  be 
punished  by  confinement  in  a  penitentiary  unless  an  act  or  omission 
of  which  he  is  convicted  is  recognized  as  an  offense  of  a  civil  nature 
by  some  statute  of  the  United  States,  or  at  the  common  law  as  the 
same  exists  in  the  District  of  Columbia,  or  by  way  of  commutation 
of  a  death  sentence,  and  unless  also  the  period  of  confinement  author- 
ized and  adjudged  by  such  court-martial  is  one  year  or  more:  Pro- 
mded^  That  when  a  sentence  of  confinement  is  adjudged  by  a  court- 
martial  upon  conviction  of  two  or  more  acts  or  omissions  any  one 
of  which  is  punishable  under  these  articles  by  confinement  in  a  peni- 
tentiary, the  entire  sentence  of  confinement  may  be  executed  in  a 
penitentiary :  Provided  further^  That  penitentiary  confinement  here- 
by authorized  may  be  served  in  any  penitentiary  directly  or  indi- 
rectly under  the  jurisdiction  of  the  United  States:  Provided  further^ 
That  persons  sentenced  to  dishonorable  discharge  and  to  confine- 
ment not  in  a  penitentiary  shall  be  confined  in  the  United  States 
Disciplinary  Barracks  or  elsewhere  as  the  Secretary  of  War  or  the  re- 
viewing authority  may  direct,  but  not  in  a  penitentiary.     (A.  W.  42.) 

[Note. — For  a  full  statement  of  the  law  relating  to  penitentiary  confinement, 
the  War  Department  policy  with  reference  to  the  segregation  of  general  prison- 
ers convicted  of  offenses  punishable  with  penitentiary  confinement  and  require- 
ments placed  upon  appointing  authorities  in  stating  the  law  applicable  where 
such  confinement  is  directed,  see  Chap.  XIII,  Sec.  II,  pars.  337,  339,  and  341.] 

397.  When  confinement  in  Disciplinary  Barracks  will  be  directed. — 
The  United  States  Disciplinary  Barracks  at  Fort  Leavenworth, 
Kans.,  or  one  of  its  branches  will  be  designated  as  the  place  of  con- 
finement of  all  general  prisoners  other  than  residents  of  Porto  Kico, 
the  Canal  Zone,  Hawaiian  Islands,  or  the  Philippine  Islands  who  are 
to  be  confined  for  six  months  or  more  and  who  are  not  to  be  con- 
fined in  a  penitentiary  pursuant  to  the  preceding  paragraph.  From 
time  to  time  detailed  instructions  will  be  issued  as  to  which  of  the 


190  MANUAL  FOR   COURTS-MARTIAL. 

barracks  shall  be  designated  and  as  to  when  the  prisoners  shall  be 
transferred  to  them. 

398.  When  confinement  in  post  will  be  directed. — ^A  military  post, 
station,  or  camp  will  be  designated  as  the  place  of  confinement  of 
any  general  prisoner  whose  case  does  not  come  within  the  terms  of 
paragraphs  396  and  397  of  this  section. 

399.  Cooperation  of  reviewing  authorities. — The  successful  segrega- 
tion of  general  prisoners  according  to  the  grade  of  their  offense  as 
prescribed  by  the  three  preceding  paragraphs  must  depend  to  a  con- 
siderable extent  upon  the  cooperation  of  officers  exercising  general 
court-martial  jurisdiction.  The  demand  for  prison  labor  at  posts  is 
not  deemed  a  sufficient  reason  for  a  departure  from  the  rule  of  segre- 
gation prescribed. 

400.  Court-martial  orders. — Trials  by  general  courts-martial,  includ- 
ing so  much  of  the  proceedings  as  will  give  the  charges  and  specifi- 
cations, the  pleas,  findings,  and  sentence,  and  the  action  and  remarks 
of  the  reviewing  authority  will  be  announced  in  general  orders  issued 
from  the  War  Department  or  in  general  court-martial  orders  from 
the  headquarters  exercising  general  court-martial  jurisdiction.  If 
the  charges  contain  matter  which  for  any  reason  is  unfit  for  publica- 
tion, such  matter  will  be  omitted  from  the  order,  but  a  copy  thereof 
will  be  promptly  furnished  by  the  reviewing  authority  to  the  com- 
manding officer  of  the  post  at  which  the  officer  or  soldier  is  confined, 
to  be  included  with  the  papers  required  to  be  sent  to  the  commanding 
officer  of  the  post  or  other  places  of  confinement  where  the  sentence 
of  confinement  is  to  be  executed.  Trials  by  special  courts-martial  will 
also  be  published  in  orders  similar  in  form  to  general  court-martial 
orders.     (For  forms,  see  Appendix  11.) 

Section  II. 
ACTION   AFTER   PROMULGATION   OF   SENTENCE. 

401.  Date  of  beginning  of  sentence. — The  order  promulgating  the 
proceedings  of  a  court  and  the  action  of  the  reviewing  authority  will, 
when  practicable,  be  of  the  same  date.  When  this  is  not  practicable,^ 
the  order  will  give  the  date  of  the  action  of  the  reviewing  authority, 
which  date  will  be  the  beginning  of  a  sentence  of  confinement,  as 
well  where  dishonorable  discharge  is  imposed  as  where  it  is  not.  A 
sentence  of  confinement  is  continuous  until  the  term  expires,  except 
where  the  prisoner  is  absent  without  authority  or  under  a  parol© 
which  proper  authority  revokes  or  is  delivered  to  the  civil  authorities 
under  A.  W.  74.  It  is  appropriate  for  the  appointing  authority  to 
consider,  at  the  time  of  approval,  confinement  served  by  an  accused 
prior  thereto,  and  in  a  proper  case  make  it  the  basis  of  mitigation 
of  the  sentence. 


COURTS-MARTIAL APPOINTING   OR  SUPERIOR  AUTHORITY.       191 

When  soldiers  awaiting  the  result  of  trial  or  undergoing  sentence 
commit  offenses  for  which  they  are  tried,  the  second  sentence  will 
be  executed  upon  the  expiration  of  the  first,  except  that  when  the 
first  sentence  involves  hard  labor  without  confinement,  and  the  second 
sentence  hard  labor  with  confinement,  the  second -sentence  will  take 
precedence.  If  a  soldier,  while  awaiting  the  result  of  a  trial  that 
terminates  in  a  sentence  of  confinement  without  dishonorable  dis- 
charge, or  while  undergoing  a  sentence  of  confinement  without  dis- 
honorable discharge,  is  tried  for  a  further  offense  and  sentenced  to 
confinement  without  dishonorable  discharge,  the  period  of  confine- 
ment imposed  by  the  second  sentence  will  be  executed  upon  the  ex- 
piration of  the  period  of  confinement  imposed  by  the  first;  but  if 
the  second  sentence  imposes  confinement  with  dishonorable  discharge, 
the  period  of  confinement  on  the  first  sentence  will  terminate  upon 
the  date  of  the  approval  of  the  second  sentence,  leaving  to  be  ex- 
cuted  only  the  confinement  imposed  by  the  second  sentence.  {O,  M, 
C,  M.,  No.  1.) 

402.  Applications  for  clemency. — The  power  to  remit  or  mitigate 
punishment  imposed  by  a  court-martial,  vested  in  the  authority  who 
appointed  the  court  or  the  corresponding  authority  under  whose 
jurisdiction  the  sentence  is  being  executed,  extends  only  to  unexecuted 
portions  of  a  sentence.  If  the  punishment  be  one  imposed  by  a  gen- 
eral court-martial,  it  may  be  remitted  or  mitigated  only  by  an  officer 
competent  to  order  a  general  court-martial  and  under  whose  jurisdic- 
tion the  sentence  is  being  executed.  The  fact  that  a  soldier  has  been  dis- 
honorably discharged  through  his  sentence  does  not  affect  this  power. 
An  application  for  clemency  in  case  of  a  prisoner  sentenced  to  con- 
finement in  a  penitentiary  or  in  the  United  States  Disciplinary  Bar- 
racks or  any  branch  thereof  will  be  forwarded  to  The  Adjutant 
General  of  the  Army  for  the  action  of  the  Secretary  of  War  and 
the  President.  A  military  prisoner  sentenced  to  confinement  in  a 
penitentiary  or  in  the  United  States  Disciplinary  Barracks  or  any 
branch  thereof  will,  so  far  as  concerns  the  exercise  of  clemency,  be 
considered  to  have  passed  beyond  the  jurisdiction  of  the  department 
or  other  commander  from  the.  date  of  the  approval  of  his  sentence. 
The  power  to  commute  sentences  imposed  by  military  tribunals,  not 
being  vested  in  military  commanders,  can  be  exercised  by  the  Presi- 
dent only. 

403.  Remission  of  suspended  sentence  of  dishonorable  discharge. — Re- 
quests to  remit  the  dishonorable  discharge  under  a  suspended  sen- 
tence of  dishonorable  discharge  are  requests  for  clemency,  and  will 
be  made  to  the  authority  empowered  to  extend  clemency. 

404.  Clemency  applications  limited  to  one  in  six  months. — It  appearing 
that  the  expenditure  of  much  unnecessary  time  and  labor  is  involved 
in  the  reexamination  in  the  War  Department  upon  further  applica- 


192  MANUAL   FOR   COUETS-MARTIAL. 

tions  for  clemency  of  cases  relating  to  military  prisoners  which  have 
received  recent  and  thorough  consideration  in  connection  with  prior 
applications,  the  Secretary  of  War  has  directed  that  where  such 
further  application  is  received  at  the  War  Department  within  six 
months  of  such  prior  consideration  the  case  will  not  be  reexamined 
unless  there  be  set  forth  in  the  application  new  and  material  reasons 
for  the  granting  of  clemency,  but  that  the  applicant  will  be  advised 
of  the  recent  consideration  arid  of  the  action  had  thereon. 


CHAPTER  XVII. 
PUNITIVE  ARTICLES. 

Section  I:  Enlistment:  Muster:  Returns:  Page. 

405.  Fifty-fourth   article 196 

I.  Fraudulent  enlistment . 197 

406.  Fifty-fifth  article 197 

I.  Unlawful  enlistment  or  muster  in 198 

407.  Fifty-sixth  article 198 

I.  Making  false  muster 199 

II.  Signing,  etc.,  false  muster  rolls 199 

III.  Taking  money,  etc.,  on  muster  or  signing  muster  rolls 199 

IV.  Mustering  as  an  officer  or  soldier  one  who  is  not 199 

408.  Fifty-seventh  article 200 

I.  Making  false  returns 200 

II.  Omitting  to  render  returns 200 

Section  II:  Desertion:  Absence  toithout  leave: 

409.  Fifty-eighth  article 201 

I.  Desertion 202 

II.  Attempting  to  desert 202 

410.  Fifty-ninth  article 1 202 

I.  Advising  desertion , , 203 

II.  Persuading  desertion 203 

III.  Assisting  desertion 203 

411.  Sixtieth  article 204 

I.  Retaining  a  deserter 204 

412.  Sixty-first  article 204 

I.  Absence  without  leave 205 

Section  III:  Disrespect:  Insubordination:  Mutiny: 

413.  Sixty*second  article ; : 206 

I.  Disrespect  toward  the  President,  etc 207 

414.  Sixty-third  article 207 

I.  Disrespect  toward  superior  officer 208 

415.  Sixty-fourth  article 208 

I.  Assaulting  superior  officer 209 

II.  Disobeying  superior  officer 209 

416.  Sixty-fifth  article 211 

I.  Assaulting  a  noncommissioned  officer 212 

II.  Disobeying  a  noncommissioned  officer 212 

III.  Using  threatening  or  insulting  language  or  behaving  in  an 

insubordinate    or    disrespectful    manner    toward    a    non- 
commissioned officer 212 

417.  Sixty-sixth  article ^ 213 

I.  Attempting  to  create  a  mutiny  (or  sedition) 213 

II.  Beginning  a  mutiny  (or  sedition) 214 

91487°— 17 14  193 


194  MANUAL  FOE  COURTS-MARTIAL. 

Section  III:  Disrespect:  Insuhordination :  Mutiny — Continued. 

417.  Sixty-sixth  article — Continued. 

III.  Joining  in  a  mutiny  (or  sedition) 214 

IV.  Exciting  a  mutiny  (or  sedition) 214 

V.  Causing  a  mutiny  (or  sedition) 214 

418.  Sixty-seventh  article 215 

I.  Failure  to  suppress  mutiny  (or  sedition) 215 

II.  Failure  to  give  information  of  mutiny  (or  sedition) 216 

419.  Sixty-eighth  article 216 

I-IV.  Refusing  to  obey  or  assaulting,  etc.,   officer  or   non- 
commissioned officer  who  is  attempting  to  suppress 

a  quarrel,  fray,  or  disorder 217 

Section  IV:  Arrest:  Confinement: 

420.  Sixty-ninth  article 218 

I.  Breach  of  arrest 218 

II.  Escape  from  confinement 219 

421.  Seventy-first    article 219 

I.  Refusing  to  receive  or  keep  prisoners 220 

422.  Seventy-second  article 220 

I.  Failure  to  render  report  as  prescribed 220 

423.  Seventy-third  article 221 

I.  Releasing  prisoner  without  proper  authority 222 

II.  Suffering  prisoner  to  escape  through  neglect 222 

III.  Suffering  prisoner  to  escape  through  design 223 

424.  Seventy-fourth  article 223 

I.  Refusing  to  deliver  accused  persons 225 

II.  Refusing  to  aid  in  apprehending  accused  persons 225 

Section  V:  War  offenses: 

425.  Seventy-fifth  article 225 

I.  Misbehavior  before  the  enemy , 226 

II.  Running  away  before  the  enemy 226 

III.  Shamefully  abandoning  or  delivering  up  any  command.  226 

IV.  Speaking  words  Inducing   these   acts 227 

V.  Casting  away  arms  or  ammunition 228 

VI.  Quitting  post  or  colors  to  plunder  or  pillage 228 

VII.  Occasioning  false  alarms 228 

426.  Seventy-sixth  article , 229 

I.  Subordinates  compelling  commander  to  surrender 229 

427.  Seventy-seventh  article 229 

I.  Making  known  parole  or  countersign 230 

II.  Giving  different  parole  or  countersign 230 

428.  Seventy-eighth  article 230 

I.  Forcing  a  safeguard 231 

429.  Seventy-ninth   article 231 

I.  Neglecting  to  secure  captured  public  property 232 

II.  Wrongful  appropriation  of  captured  public  property 232 

430.  Eightieth   article 232 

I.  Dealing  in  captured  or  abandoned  property 233 

II.  Failure  or  delay  in  reporting  receipt  of  captured  or  aban- 
doned property 233 


PUNITIVE  ARTICLES.  195 

Section  V:  War  offenses — Continued.  Pag«. 

431.  Eighty-first  article 234 

I.  Relieving  the  enemy 234 

II.  Harboring  or  protecting  the  enemy 234 

III.  Holding  correspondence  with  the  enemy 235 

IV.  Giving  intelligence  to  the  enemy 235 

432.  Eighty-second   article 236 

I.  Being  a  spy 236 

Section   VI:  Miscellaneous   crimes  and   offenses: 

433.  Eighty-third  article 237 

I.  Suffering  military  property  to  be  lost,  etc 238 

434.  Eighty-fourth   article 238 

I.  Selling  or  wrongfully  disposing  of  military  property.  239 
II.  Willfully  or  through  neglect  injuring  or  losing  mili- 
tary property 239 

435.  Eighty-fifth   article 239 

I.  Being  found  drunk  on  duty 241 

436.  Eighty-sixth  article 242 

I.  Being  found  drunk  on  post 242 

II.  Being  found  sleeping  on  post 242 

III.  Leaving  post  before  being  relieved 242 

437.  Eighty-seventh   article ^ 243 

I.  Laying  a  duty  or  imposition  upon  the  bringing  in  of 

victuals,  etc 243 

II.  Being  interested  in  the  sale  of  victuals,  etc 243 

438.  Eighty-eighth    article 244 

I.  Intimidating,  etc.,  persons  bringing  necessaries 245 

439.  Eighty-ninth   article 245 

I.  Committing  waste  or  spoil 245 

II.  Willfully  destroying  property 246 

III.  Committing  depredation  or  riot 246 

IV.  Refusing  or  omitting  to  see  reparation  made 246 

440.  Nineteenth  article 246 

I.  Using  provoking  speeches  or  gestures 247 

441.  Ninety-first  article 247 

I.  Fighting  or  promoting  a  duel 248 

II.  Being  concerned  in  or  conniving  at  fighting  a  duel__  248 

III.  Failing  to  report  knowledge  of  a  challenge 248 

442.  Ninety-second   article 248 

I.  Murder    249 

IL  Rape 251 

443.  Ninety-third  article .^ 252 

I.  Manslaughter 253 

II.  Mayhem 254 

III.  Arson 254 

IV.  Burglary 255 

V.  Larceny 257 

VI.  Robbery 262 

VII.  Embezzlement 264 

VIII.  Perjury 264 

IX.  Assault  with  intent  to  commit  any  felony 266 

1.  Assault  with  intent  to  murder 268 

2.  Assault  with  intent  to  commit  manslaughter 269 

3.  Assault  with  intent  to  commit  rape 270 


196  MANUAL  FOE  COUBTS-MAKTIAL. 

Section  VI:  Miscellaneous  crimes  and  offenses — Continued.  Page. 

443.  Ninety-third  article — Continued. 

IX.  Assault  with  intent  to  commit  any  felony — Continued. 

4.  Assault  with  intent  to  rob 270 

5.  Assault  with  intent  to  commit  sodomy 271 

X.  Assault  with  intent  to  do  bodily  harm 272 

444.  Ninety-fourth    article 272 

I.  Making  or  causing  to  be  made  a  false  or  fraudulent 

claim    ^ 274 

II.  Presenting  or  causing  to  be  presented  for  approval  or 

payment  a  false  or  fraudulent  claim 275 

III.  Entering  into  an  agreement  or  conspiracy  to  defraud 

the  United  States  through  false  claims 275 

IV.  Making,  using,  procuring,  or  advising  the  making  or 
use  of  a  false  writing  or  other  paper  in  connection 

with   claims 276 

V.  False  oath  in  connection  with  claims 277 

VI.  Forgery,  etc.,  of  signature  in  connection  with  claims.       277 

VII.  Delivering  less  than  amount  called  for  by  receipt 277 

VIII.  Making  or  delivering  receipt  without  having  knowl- 
edge that  the  same  is  true 278 

IX.  Embezzlement,  misappropriation,  sale,  etc.,  of  military 

property . 278 

X.  Purchasing  or  receiving  in  pledge  of  military  property.       280 

445.  Ninety-fifth  article 280 

I.  Conduct  unbecoming  an  officer  and  gentleman 281 

446.  Ninety-sixth  article 281 

I,  Disorders  and  neglects  to  the  prejudice  of  good  order 

and  military  discipline 282 

II.  Conduct  of  a  nature  to  bring  discredit  upon  the  mili- 
tary service 283 

III.  Crimes  or  offenses  not  capital 283 


Section  I. 
ENLISTMENT— MUSTER— RETURNS. 

FIFTY-FOURTH  ARTICLE. 

405.  Any  person  who  shall  procure  himself  to  be  enlisted  in  the  military  serv- 
ice of  the  United  States  by  means  of  willful  misrepresentation  or  concealment  as 
to  his  qualifications  for  enlistment,  and  shall  receive  pay  or  allowances  under 
such  enlistment,  shall  be  punished  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

A  fraudulent  enlistment  is  an  enlistment  procured  by  means  of  a 
wiflful  misrepresentation  in  regard  to  a  qualification  or  disqualifica- 
tion for  enlistment,  or  by  intentional  concealment  of  a  disqualifica- 
tion which  has  had  the  effect  of  causing  the  enlistment  of  a  man  not 
qualified  to  be  a  soldier  and  who  but  for  such  false  representation  or 
concealment  would  have  been  rejected. 


PUNITIVE   ARTICLES.  197 

'Willful  means  intentional,  thus  excluding  cases  of  mistake  or  for- 
getfulness. 

Misrepresentation  and  concealment  include  any  act,  statement,  or 
omission,  however  made,  which  has  the  effect  of  conveying  an  untruth 
or  concealing  the  truth  concerning  the  applicant's  qualifications  or 
disqualifications  for  enlistment. 

The  misrepresentation  or  concealment  may  be  in  matters  which  are 
designed  to  open  the  door  to  inquiry  concerning  the  qualifications  or 
disqualifications  for  enlistment,  such  as  questions  as  to  previous 
service,  previous  applications  for  enlistment,  etc. 

The  qualifications  or  disqualifications  may  be  prescribed  by  law, 
regulations,  or  orders. 

Answers  to  questions  having  no  bearing  on  the  applicant's  quali- 
fications for  enlistment,  such  as  questions  as  to  applicant's  name, 
address,  or  immaterial  statements  as  to  age,  are  not  sufficient. 

Analysis  and  Proof. 

The  article  applies  only  to  enlisted  men. 

The  article  defines  one  offense,  i.  e.,  fraudulent  enlistment. 

I.   FRAXTDULENT  ENLISTMENT. 
PBOOF. 

{a)  The  enlistment  of  the  accused  in  the  military  service  as  alleged. 

(b)  That  the  accused  willfully  misrepresented  a  certain  fact  or 
facts  regarding  his  qualifications  or  disqualifications  for  enlistment, 
or  willfully — that  is,  intentionally — concealed  a  disqualification,  as 
alleged. 

(<?)  That  enlistment  was  procured  by  such  misrepresentation  or 
concealment. 

{d)  That  under  such  enlistment  the  accused  received  either  pay 
or  allowances,  or  both,  as  alleged. 

{e)  Where  a  soldier  enlists  without  a  discharge  (see  twenty -ninth 
article),  the  proof  should  include  the  fact  that  at  the  time  of  the 
alleged  enlistment  the  accused  was  a  soldier,  and  that  the  enlistment 
was  entered  into  without  a  regular  discharge  from  the  former  enlist- 
ment. 

FIFTY-FIFTH  ARTICLE. 

406.  Any  officer  who  knowlingly  enlists  or  musters  into  tlie  military  service 
any  person  whose  enlistment  or  muster  in  is  prohibited  by  law,  regulations,  or 
orders  shall  be  dismissed  from  the  service  or  suffer  such  other  punishment  as  a 
court-martial  may  direct. 


198  MANUAL  FOR  COURTS-MARTIAL. 

Definitions  and  Principles. 

See  the  terms  of  the  article. 

The  prohibited  enlistment  must  be  knowingly  made,  i.  e.,  it  must  be 
shown  that  the  accused  knew  that  the  person  enlisted  or  mustered  in 
by  him  was  within  the  prohibited  class. 

Knowingly  includes  not  only  a  certainty  of  belief  but  also  such  a 
degree  of  belief  as  the  ordinarily  prudent  man  acts  upon. 

The  enlistment  or  muster  in  of  the  person  must  be  at  the  time  pro- 
hibited by  law  or  by  regulations  or  orders  that  were  operative  as  to 
the  accused. 

This  excludes  cases  where  the  enlistment  or  muster  in  was  pro- 
hibited by  regulations  or  orders  of  the  existence  of  which  the  accused 
was  not  aware  or  at  the  time  chargeable  with  knowledge. 

Analysis  and  Proof. 

The  article  applies  only  to  officers. 

The  article  defines  two  offenses  which  may  be  treated  under  one 
heading  as  follows : 

L  UNLAWFUL  ENLISTMENT  (OR  MUSTER  IN). 
PEOOF. 

{a)  The  enlistment  or  muster  in  by  the  accused  officer  of  the  per- 
son named,  as  alleged. 

{h)  That  such  person  was  within  the  classes  whose  enlistment  or 
muster  in  were  prohibited  at  the  time  of  such  enlistment  or  muster  in. 

{c)  That  the  accused  knew  this  at  the  time  of  the  enlistment  or 
muster  in  of  such  person, 

FIFTY-SIXTH  ARTICLE. 

407.  *  *  *  Any  oflScer  who  knowingly  makes  a  false  muster  of  man  or 
animal,  or  who  signs  or  directs  or  allows  the  signing  of  any  muster  roll  knowing 
the  same  to  contain  a  false  muster  or  false  statement  as  to  the  absence  or  pay  of 
an  officer  or  soldier,  or  who  wrongfully  takes  money  or  other  consideration 
on  mustering  in  a  regiment,  company,  or  other  organization,  or  on  signing 
muster  rolls,  or  who  knowingly  musters  as  an  officer  or  soldier  a  person  who 
is  not  such  officer  or  soldier,  shall  be  dismissed  from  the  service  and  suffer 
such  other  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  terms  of  the  article  for  requirements  as  to  muster  rolls  and 
definition  of  the  offenses. 

Muster  has  been  defined  as  the  assembling,  inspecting,  entering 
upon  the  formal  rolls,  and  officially  reporting  as  a  component  part  of 
the  command  of  persons  or  public  animals.     (Winthrop,  p.  862.) 


PUNITIVE   ARTICLES.  199 

Analysis  and  Proof. 

The  article  applies  only  to  officers. 

The  article  defines  a  number  of  offenses  which  may  be  treated 
under  the  following  heads: 

I.  Making  false  muster. 

II.  Signing,  directing,  or  allowing  the  signing  of  false  muster  rolls. 

III.  Taking  money  or  other  consideration  on  muster  or  signing 
muster  rolls. 

IV.  Mustering  as  an  officer  or  soldier  one  who  is  not. 

I.   MAKING   FALSE    MUSTER. 
PEOOF. 

(a)  That  the  muster  of  a  certain  man  or  animal  was  made  by  the 
accused  officer,  as  alleged. 

(b)  That  the  muster  was  false  as  alleged. 

(c)  That  the  accused  officer  knew  this  at  the  time  of  making  the 
muster. 

II.    SIGNING,    DIRECTING,    OR    ALLOWING    THE    SIGNING    OF    FALSE    MUSTER 

ROLLS. 

PEOOF. 

(a)  That  the  accused  officer  signed  the  muster  roll  or  directed  or 
allowed  the  signing  of  the  muster  roll  as  alleged. 

(b)  That  such  muster  roll  was  false  in  certain  particulars  as  alleged. 
(g)  That  the  accused  officer  knew  this  at  the  time  he  signed  the 

roll  or  directed  or  allowed  it  to  be  signed  as  alleged. 

ni.    TAKING    MONEY   OR   OTHER    CONSIDERATION    ON    MUSTER   OR   SIGNING 

MUSTER  ROLLS. 

PEOOF. 

(a)  That  the  accused  officer  made  the  muster  of  the  organization 
or  signed  the  muster  rolls  as  alleged. 

(b)  That  he  accepted  money  or  other  consideration  as  a  compensa- 
tion or  reward  for  making  the  muster  or  signing  the  muster  rolls. 

(c)  That  the  taking  of  such  money  or  other  consideration  was 
wrongful — that  is,  without  legal  excuse. 

IV.  MUSTERING  AS  AN  OFFICER  OR  SOLDIER  ONE  WHO  IS  NOT. 

PEOOF. 

(a)  That  the  accused  officer  mustered  as  an  officer  or  soldier  a 
certain  person,  as  alleged. 


200  MANUAL  FOB  COUETS-MAKTIAL. 

(&)  That  the  person  so  mustered  was  not  such  officer  or  soldier. 
(c)  That  the  accused  knew  this  when  he  made  the  muster. 

FIFTY-SEVENTH  ARTICLE. 

408.  Every  officer  commanding  a  regiment,  an  independent  troop,  battery,  or 
company,  or  a  garrison,  shall,  in  the  beginning  of  every  month,  transmit  through 
the  proper  channels,  to  the  Department  of  War,  an  exact  return  of  the  same, 
specifying  the  names  of  the  officers  then  absent  from  their  posts,  with  the 
reasons  for  and  the  time  of  their  absence.  Every  officer  whose  duty  it  is  to 
render  to  the  War  Department  or  other  superior  authority  a  return  of  the  state 
of  the  troops  under  his  command,  or  of  the  arms,  ammunitions,  clothing,  funds, 
or  other  property  thereunto  belonging,  who  knowingly  makes  a  false  return 
thereof  shall  be  dismissed  from  the  service  and  suffer  such  other  punishment 
as  a  court-martial  may  direct.  And  any  officer  who,  through  neglect  or  design, 
omits  to  render  such  return  shall  be  punished  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  terms  of  the  article,  the  penal  part  of  which  applies  broadly 
to  "every  officer  whose  duty  it  is  to  render  to  the  War  Department 
or  other  superior  authority  a  return  of  the  state  of  the  troops  under 
his  command,  or  of  the  arms,  ammunition,  clothing,  funds,  or  other 
property  thereunto  belonging." 

Analysis  and  Proof. 

The  article  applies  to  commanding  officers  only. 
The  article  defines  two  offenses : 

I.  Making  false  returns. 

II.  Omitting  to  render  returns. 

I.  making  false  returns. 
As  to  knoioingly^  see  remarks  under  fifty-fifth  article. 

PROOF. 

{a)  That  the  accused  officer  was  a  commanding  officer,  as  alleged. 

(&)  That  it  became  his  duty  as  such  to  render  to  a  certain  superior 
authority  a  certain  return  as  specified. 

((?)  That  he  complied  with  such  duty,  and  that  the  return  so  made 
was  false  in  certain  particulars,  as  alleged. 

{d)  That  the  accused  officer  knew  that  the  return  was  false  at  the 
time  of  making  it. 

II.  omitting  to  render  returns. 

The  term  "  neglect "  involves  the  idea  of  culpability  and  includes 
the  case  of  an  officer  who,  knowing  the  return  to  be  due,  fails  to 
render  it  through  remissness  or  procrastination. 


PUNITIVE  ARTICLES.  201 


(a)  That  the  accused  officer  was  a  commanding  officer  as  alleged. 

(b)  That  it  became  his  duty  as  such  to  render  to  a  certain  superior 
authority  a  certain  return  as  specified. 

(c)  That  he  omitted  through  neglect  or  design  to  render  such 
return. 

Section  II. 
DESERTION— ABSENCE  WITHOUT  LEAVE. 

FIFTY-EIGHTH    ARTICLE. 

409.  Any  person  subject  to  military  law  who  deserts  or  attempts  to  desert  the 
service  of  the  United  States  shall,  if  the  offense  be  committed  in  time  of  war, 
suffer  death  or  such  other  punishment  as  a  court-martial  may  direct,  and,  if 
the  offense  be  committed  at  any  other  time,  any  punishment,  excepting  death, 
that  a  court-martial  may  direct. 

Definitions  and  Principles. 

Desertion  is  absence  without  leave  accompanied  by  the  intention 
not  to  return. 

Both  elements  are  essential  to  the  offense.  The  offense  becomes 
complete  when  the  person  absents  himself  without  authority  from 
his  place  of  service  with  intent  not  to  return  thereto.  A  prompt 
repentance  and  return  are  no  defense,  nor  is  it  a  defense  that  the 
deserter  at  the  time  of  departure  intended  to  report  for  duty  else- 
where. Thus,  where  a  soldier  leaves  his  post  intending  never  to 
go  hack  unless  a  certain  event  happens^  or  leaves  his  post  with  such 
intent  and  reports  at  another  post,  he  is  a  deserter;  but  unless  such 
intent  exists  at  some  time  the  soldier  can  not  be  a  deserter  whether 
his  purpose  is  to  stay  away  a  definite  or  indefinite  length  of  time. 
Where  a  soldier,  without  having  been  discharged,  again  enlists  in 
the  Army  or  in  the  Militia  in  the  service  of  the  United  States,  such 
enlistment  is,  by  the  twenty-ninth  article,  made  sufficient  evidence 
of  desertion.  In  such  a  case,  proof  of  the  intent  permanently  to 
stay  away  from  his  former  place  of  service  and  of  the  status  of 
absence  without  leave  therefrom  are  unnecessary. 

Analysis  and  Proof. 

The  article  includes  all  persons  subject  to  military  law.  See 
Article  2. 

The  article  defines  two  offenses,  as  follows : 

I.  Desertion. 

II.  Attempting  to  desert. 


202  MANUAL  FOB  COURTS-MARTIAL. 

I.    DESERTION. 

PROOF. 

(a)  That  the  accused  absented  himself,  or  remained  absent  with* 
out  authority,  from  his  place  of  service,  as  alleged. 

(h)  That  he  intended,  at  the  time  of  absenting  himself  or  at  some 
time  during  his  absence,  to  remain  away  permanently  from  such 
place. 

(g)  That  his  absence  was  of  a  duration  and  was  terminated  as 
alleged. 

(d)  That  his  act  was  done,  if  so  alleged,  in  the  execution  of  a 
certain  conspiracy,  or  in  the  presence  of  a  certain  outbreak  of 
Indians,  or  of  a  certain  unlawful  assemblage  which  his  organization 
was  opposing,  or  in  time  of  war  where  the  court  will  not  take  judi- 
cial notice  of  the  existence  of  a  status  of  war. 

(e)  Where  the  soldier  enlisted  without  a  discharge  (see  twenty- 
ninth  article),  that  the  accused  was  a  soldier  in  a  certain  organiza- 
tion of  the  Army  as  alleged ;  and  that,  without  being  discharged  from 
such  organization,  he  again  enlisted  in  the  Army,  Navy,  Marine 
Corps,  or  some  foreign  army  as  alleged.  In  this  case  proof  of  the 
absence  without;  leave  and  of  the  intention  not  to  return  become 
unnecessary. 

II.    ATTEMPTING   TO   DESERT. 

An  attempt  to  desert  is  an  overt  act  other  than  mere  preparation 
toward  accomplishing  a  purpose  to  desert. 

Usually  the  endeavor  of  the  accused  toward  getting  away  will  be 
frustrated  by  an  agency  independent  of  his  own  will;  but  once  the 
attempt  is  made  a  turning  back  by  the  accused  of  his  own  accord 
does  not  obliterate  the  offense.  An  instance  of  the  offense  is :  A 
soldier  intending  to  desert  hides  himself  in  an  empty  freight  car  on 
the  post,  intending  to  effect  his  escape  from  the  post  by  being  taken 
out  in  the  car. 

PROOF. 

(a)  That  the  accused  made  the  attempt  by  doing  the  overt  act  or 
acts  alleged. 

(b)  That  he  intended  to  desert  at  the  time  of  doing  such  act  or  acts, 

(c)  That  his  act  was  done,  if  so  alleged,  in  the  execution  of  a  cer- 
tain conspiracy,  or  in  the  presence  of  a  certain  outbreak  of  Indians, 
or  a  certain  unlawful  assemblage  which  his  organization  was  oppos- 
ing, or  in  time  of  war  where  the  court  will  not  take  judicial  notice 
of  the  existence  of  the  status  specified. 

FIFTY-NINTH  ARTICLE. 
410.  Any  person  subject  to  military  law  who  advises  or  persuades  or  know- 
ingly assists  another  to  desert  the  service  of  the  United  States  shall,  if  the 


PUNITIVE   ARTICLES.  203 

offense  be  committed  in  time  of  war,  suffer  death,  or  such  other  punishment  as 
a  court-martial  may  direct,  and,  if  the  offense  be  committed  at  any  other  time, 
any  punishment,  excepting  death,  that  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  definition  of  desertion  under  the  next  preceding  article. 

As  to  knowingly^  see  remarks  under  the  fifty-fifth  article. 

The  offenses  of  persuading  and  assisting  desertion  are  not  com- 
plete unless  the  desertion  occurs;  but  the  offense  of  advising  is  com- 
plete when  the  advice  is  given,  whether  the  person  advised  deserts 
or  not. 

It  is  not  necessary  that  the  accused  act  alone  in  giving  the  advice 
or  assistance,  or  in  the  persuasion;  and  he  may  act  through  other 
persons  in  committing  the  offenses. 

Analysis  and  Proof. 

The  article  applies  to  all  persons  subject  to  military  law.  See 
article  2. 

The  article  defines  three  offenses,  as  follows: 

I.  Advising  desertion. 

II.  Persuading  desertion. 

III.  Assisting  desertion. 

I.  advising  desertion. 

PEOOF. 

{a)  That  the  accused  advised  a  person  subject  to  military  law  to 
desert  the  service  as  alleged. 

{h)  That  the  act  was  done,  if  so  alleged,  in  time  of  war,  where 
the  court  will  not  take  judicial  notice  of  the  status  of  war. 

II.   PERSUADING    DESERTION. 


{a)  That  the  accused  used  persuasion  to  induce  a  person  subject 
to  military  law  to  desert  the  service  as  alleged. 

{h)  That  the  person  whom  he  persuaded  deserted  as  alleged,  and 
was  induced  to  do  so  by  such  persuasion.  See  proof  of  desertion 
in  the  next  preceding  article,  items  {a)  and  (&). 

{c)  That  the  act  was  done,  if  so  alleged,  in  time  of  war,  where 
the  court  will  not  take  judicial  notice  of  the  status  of  war. 

III.  ASSISTING  DESERTION. 
PBOOF. 

{a)  That  the  accused  Imowingly  assisted  a  person  subject  to  mil- 
itary law  to  desert  the  service  as  alleged. 


204  MANUAL  FOB  COURTS-MARTIAL. 

(h)  That  the  person  given  such  assistance  deserted  as  alleged. 
See  proof  of  desertion  in  the  next  preceding  article,  items  (a)  and 

(c)  That  the  act  was  done,  if  so  alleged,  in  time  of  war,  where 
the  court  will  not  take  judicial  notice  of  the  status  of  war. 

SIXTIETH    ARTICLE. 

411.  Any  officer  who,  after  having  discovered  that  a  soldier  in  his  command  is 
a  deserter  from  the  military  or  naval  service  or  from  the  Marine  Corps,  retains 
such  deserter  in  his  command  without  informing  superior  authority  or  the  com- 
mander of  the  organization  to  which  the  deserter  belongs  shall  be  punished  as 
a  court-martial  may  direct. 

Definitions  and  Principles. 

See  definition  of  desertion  under  article  58. 

Discovered  does  not  imply  a  certainty  on  the  one  hand  or  a  mere 
suspicion  on  the  other.  It  implies  such  a  belief  as  the  ordinarily 
prudent  officer  would  act  upon. 

Analysis  and  Proof. 

The  article  applies  only  to  commanding  officers. 
The  article  defines  one  offense: 

I.  RETAINING  A  DESERTER. 
PBOOF. 

{a)  That  the  accused  officer  exercised  a  certain  command  as  al- 
leged. 

{h)  That  while  so  in  command  he  discovered  that  a  certain  soldier 
in  his  command  was  a  deserter  from  the  military  or  naval  service,  or 
from  the  Marine  Corps,  as  alleged. 

{c)  That  such  soldier  was  in  fact  such  a  deserter.  See  proof  of 
desertion  under  fifty-eighth  article,  items  {a)  and  (5). 

{d)  That  he  retained  such  deserter  in  his  command  without  in- 
forming superior  authority  or  the  commanding  officer  of  the  organi- 
zation to  which  the  deserter  belongs,  as  alleged. 

SIXTY-FIRST  ARTICLE. 

412.  Any  person  subject  to  military  law  who  fails  to  repair  at  the  fixed  time  to 
the  properly  appointed  place  of  duty,  or  goes  from  the  same  without  proper 
leave,  or  absents  himself  from  his  command,  guard,  quarters,  station,  or  camp 
without  proper  leave,  shall  be  punished  as  a  court-martial  may  direct. 


PUNITIVE   AETICLES.  205 

Definitions  and  Principles. 

The  article  is  designed  to  cover  every  case  not  elsewhere  provided 
for  where  any  person  subject  to  military  law  is  through  his  own  fault 
not  at  the  place  where  he  is  required  to  be  at  a  time  when  he  should 
be  there. 

The  first  part  of  the  article — ^that  relating  to  properly  appointed 
place  of  duty — applies  whether  such  place  is  appointed  as  a  rendez- 
vous for  several  or  for  one  only.  Thus,  it  would  apply  in  the  case 
of  a  soldier  failing  to  report  as  the  kitchen  police  or  leaving  such 
duty  after  reporting. 

A  soldier  turned  over  to  the  civil  authorities  upon  application  is 
not  punishable  under  this  article  for  the  period  he  is  held  by  them 
under  such  delivery.  So,  also,  where  a  soldier  is  absent  with  leave 
and  is  held,  tried,  and  acquitted  by  the  civil  authorities,  his  status 
does  not  change  to  absence  without  leave.  But  where  the  soldier  is 
absent  without  leave  when  tried,  although  acquitted,  or  being  absent 
with  leave  is  convicted  and  held  beyond  the  expiration  of  his  pass, 
or  being  absent  without  leave  is  unable  to  return  through  sickness  or 
lack  of  transportation  facilities,  or  other  disabilities,  the  period  of 
the  absence  without  leave  will  include  the  time  he  is  so  detained ;  but, 
in  view  of  the  fact  that  the  absence  during  such  time  is  enforced,  it 
would  be  appropriate  not  to  consider  the  length  of  such  detention  for 
the  purpose  of  administering  punishment  in  the  case. 

In  computing  the  length  in  days  of  a  period  of  absence  for  the 
purpose  of  determining  the  maximum  punishment  for  an  absence 
without  leave  under  this  article  periods  of  24  hours  are  considered 
one-  day.  Thus,  a  soldier  who  absents  himself  from  11.59  p.  m.  one 
day  to  12.01  a.  m.  the  next  is  absent  only  a  fraction  of  a  day  as  far 
as  the  maximum  punishment  order  is  concerned,  although  the  period 
of  absence  cover  parts  of  two  calendar  days. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law.  See 
Article  2. 

The  article  defines  a  number  of  offenses  which  may  be  treated 
under  the  general  term  "Absence  without  leave." 

I.    ABSENCE  WITHOUT  LEAVE. 


(1)  Where  the  (wciised  jaUs  to  appear  ai  or  goes  JToni  a  pl<iee  of 
duty, 

{a)  That  a  certain  authority  appointed  a  certain  time  and  place 
for  a  certain  duty  by  the  accused,  as  alleged. 


206  MANUAL  FOR  COURTS-MARTIAL. 

(b)  That  he  failed  to  report  to  such  place  at  the  proper  time,  or 
having  so  reported  went  from  the  same  without  authority  from  any 
one  competent  to  give  him  leave  to  do  so. 

(2)  Where  the  dccused  is  charged  with  absenting  hmiself  without 
proper  leave. 

(a)  That  the  accused  absented  himself  from  his  command,  guard, 
quarters,  station,  or  camp  for  a  certain  period,  as  alleged. 

(b)  That  such  absence  was  without  authority  from  any  one  com- 
petent to  give  him  leave. 

Section  III. 

DISRESPECT— INSUBORDINATION— MUTINY. 

SIXTY-SECOND  ARTICLE. 

413.  Any  officer  who  uses  contemptuous  or  disrespectful  words  against  the 
President,  Vice  President,  the  Congress  of  the  United  States,  the  Secretary  of 
War,  or  the  governor  or  legislature  of  any  State,  Territory,  or  other  possession 
of  the  United  States  in  which  he  is  quartered  shall  be  dismissed  from  the  serv- 
ice or  suffer  such  other  punishment  as  a  court-martial  may  direct.  Any  other 
person  subject  to  military  law  who  so  offends  shall  be  punished  as  a  court- 
martial  may  direct. 

Definitions  and  Principles. 

The  contemptuous  or  disrespectful  words,  as  used  in  this  article, 
cover  language  disrespectful  and  contemptuous  in  themselves,  such 
as  abusive  epithets,  denunciatory  or  contumelious  expressions,  or 
intemperate  or  malevolent  comments  upon  official  or  personal  acts, 
etc.,  or  words  disrespectful  or  contemptuous  because  of  the  connec- 
tion in  which  and  the  circumstances  under  which  they  are  used. 

It  is  essential  that  a  person  against  whom  such  words  are  used  be 
in  one  of  the  offices  named  at  the  time ;  but  it  is  immaterial  whether 
the  words  are  spoken  against  him  in  his  official  or  private  capacity. 

The  truth  or  falsity  of  the  statements  is,  as  a  rule,  immaterial. 

Trials  for  offenses  covered  by  this  article  have  usually  been  for 
the  use  of  "  contemptuous  or  disrespectful  words  against  the  Presi- 
dent," or  the  Government  mainly  as  represented  by  the  President. 
The  deliberate  employment  of  denunciatory  or  contumelious  lan- 
guage in  regard  to  the  President,  whether  spoken  in  public  or  pub- 
lished, or  conveyed  in  a  communication  designed  to  be  made  public, 
has,  in  repeated  cases,  been  made  the  subject  of  charges  and  trial 
under  this  article.     (Digest,  p.  120;  Winthrop,  p.  872.) 

The  language  used  must  be  disrespectful  or  contemptuous.  Adverse 
criticism  of  the  Executive  expressed  in  emphatic  language  in  the  heat 
of  political  discussion,  but  not  apparently  intended  to  be  personally 
disrespectful,  should  not  be  made  the  basis  of  trial  under  this  article. 
(Idem.) 


PUNITIVE  ARTICLES.  207 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law. 
The  article  defines  a  number  of  offenses  which  may  be  treated  under 
the  general  term  of  "  disrespect  toward  the  President,  etc." 

I.  DISRESPECT  TOWARD  THE  PRESIDENT,  ETC. 

PEOOF. 

(a)  That  the  accused  used  certain  contemptuous  or  disrespectful 
words  against  the  President,  or  other  of  the  authorities  mentioned 
in  the  article,  as  alleged. 

(b)  Where  such  words  are  not  contemptuous  or  disrespectful  in 
themselves  that  the  words  were  used  under  certain  circumstances  or 
in  a  certain  connection,  or  that  a  certain  intended  meaning  gave  them 
the  character  of  contemptuous  or  disrespectful  words,  as  alleged. 

SIXTY-THIRD  ARTICLE. 

414.  Any  person  subject  to  military  law  who  behaves  himself  with  disrespect 
toward  his  superior  officer  shall  be  punished  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

The  disrespectful  behavior  contemplated  by  this  article  is  such  as 
detracts  from  the  respect  due  to  the  authority  and  person  of  a  superior 
officer.    It  may  consist  in  acts  or  language,  however  expressed. 

It  is  not  essential  that  the  disrespectful  behavior  be  in  the  presence 
of  the  superior,  but  in  general  it  is  considered  objectionable  to  hold 
one  accountable  under  this  article  for  what  was  said  or  done  by  him 
in  a  purely  private  conversation. 

The  officer  toward  whom  the  disrespectful  behavior  was  directed 
must  have  been  the  superior  of  the  accused  at  the  time  of  the  acts 
charged ;  but  by  superior  is  not  necessarily  meant  a  superior  in  rank, 
as  a  line  officer,  though  inferior  in  rank,  may  be  the  commanding 
officer,  and  thus  the  superior  of  a  staff  officer,  such  as  a  surgeon. 

Disrespect  by  words  may  be  conveyed  by  opprobrious  epithets  or 
other  contumelious  or  denunciatory  language.     (Winthrop,  p.  874.) 

Disrespect  by  acts  may  be  exhibited  in  a  variety  of  modes — as  neg- 
lecting the  customary  salute,  by  a  marked  disdain,  indifference,  inso- 
lence, impertinence,  undue  familiarity,  or  other  rudeness  in  the  pres- 
ence of  the  superior  officer.    (Winthrop,  p.  875.) 

It  is  not  essential  that  the  behavior  be  intentional,  and  it  is  imma- 
terial that  only  facts  were  stated ;  but  where  the  person  who  did  the 
acts  or  spoke  the  words  did  not  know  that  the  person  against  whom 
they  were  directed  was  his  superior  officer,  such  ignorance  is  a 
defense. 


208 


MANUAL  FOR   COURTS-MARTIAL. 

Analysis  and  Proof. 


The  article  applies  to  any  person  subject  to  military  law.  See 
Article  2. 

The  article  defines  one  offense,  that  is,  disrespect  toward  a  superior 
officer. 

I.  DISRESPECT  TOWARD  A  SUPERIOR   OFFICER. 


PROOF. 

(a)  That  the  accused  did  or  omitted  to  do  certain  acts  or  spoke 
certain  words  toward  a  certain  officer,  as  alleged. 

(&)  That  the  behavior  involved  in  such  acts,  omissions,  or  words 
was  that  under  certain  circumstance  or  in  a  certain  connection  or 
with  a  certain  meaning,  as  alleged. 

(c)  That  the  officer  toward  whom  the  acts,  omissions,  or  words 
were  directed  was  the  accused's  superior  officer. 

SIXTY-FOURTH  ARTICLE. 

415.  Any  i)erson  subject  to  military  law  who,  on  any  pretense  whatsoever, 
strikes  his  superior  officer  or  draws  or  lifts  up  any  weapon  or  offers  any  violence 
against  him,  being  in  the  execution  of  his  office,  or  willfully  disobeys  any  law- 
ful command  of  his  superior  officer,  shall  suffer  death  or  such  other  punishment 
as  a  court-martial  may  direct.     , 

Definitions  and  Principles. 

The  phrase  "  on  any  pretense  whatsoever  "  is  not  to  be  understood 
as  excluding  as  a  defense  the  fact  that  the  striking  was  done  in 
legitimate  self-defense  or  in  the  discharge  of  some  duty,  such  as  is 
enjoined  by  the  sixty-seventh  article. 

By  "  superior  officer  "  is  meant  not  only  the  commanding  officer  of 
the  accused,  whatever  may  be  the  relative  rank  of  the  two,  but  any 
other  commissioned  officer  of  rank  superior  to  that  of  the  accused. 
That  the  accused  did  not  know  the  officer  to  be  his  superior  is 
available  as  a  defense. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law.  See 
Article  2. 

The  article  embraces  offenses  indicated  by  the  following  diagram : 

'  Strikes 

or 
Draws 
On  any  pretense!       or       \  Any  weapon  against 
Any  person         whatsoever      j  Lifts  upj 
subject  to  I  or 

military      |  Offers  any  violence  against' 

law  who  [      or 

Willfully  disobeys  any  lawful  command  of  his  superior  officer - 


His  superior  officer 
being  in  the  ex- 
ecution of  his 
office. 


PUNITIVE  ARTICLES.  209 

These  offenses  may  be  treated  under  the  following  heads: 

I.  Assaulting  superior  officer. 

II.  Disobeying  superior  officer. 

I.  ASSAULTING   SUPERIOR   OFFICER. 

The  word  "  strikes  "  means  an  intentional  blow  with  anything  by 
which  a  blow  can  be  given. 

The  phrase  "  draws  or  lifts  up  any  weapon  against "  covers  any 
simple  assault  committed  in  the  manner  stated. 

The  offense  consisting  either  in  a  mere  threatening  of  violence 
without  anything  further  being  proposed,  or  in  an  attempt  to  do 
violence  which  is  not  effectuated.  The  weapon  chiefly  had  in  view 
by  the  word  "  draw  "  is  no  doubt  the  sword ;  the  term  might,  however, 
apply  to  a  bayonet  in  a  sheath,  or  to  a  pistol;  and  the  drawing  of 
either  in  an  aggressive  manner,  or  the  raising  or  brandishing  of  the 
same  minaciously  in  the  presence  of  the  superior  and  at  him  is  the 
sort  of  act  contemplated.  The  raising  in  a  threatening  manner  of  a 
firearm  (whether  or  not  loaded)  or  of  a  club,  or  any  implement  or 
thing  by  which  a  serious  blow  could  be  given,  would  be  Tvithin  the 
description — ^'^  lifts  up."     (Winthrop,  p.  879.) 

The  phrase  "  offers  any  violence  against  him  "  comprises  any  form 
of  battery  or  of  mere  assault  not  embraced  in  the  preceding  more 
specific  terms  "  strikes  "  and  "  draws  or  lifts  up."  But  the  violence 
where  not  executed  must  be  physically  attempted  or  menaced.  A 
mere  threatening  in  words  would  not  be  an  offering  of  violence  in  the 
sense  of  the  article.     (Winthrop,  pp.  879  and  880.) 

An  officer  is  in  the  execution  of  his  office  "  when  engaged  in  any 
act  or  service  required  or  authorized  to  be  done  by  him  by  statute, 
regulation,  the  order  of  a  superior  or  military  usage."  (Winthrop, 
p.  881.) 

PKOOF. 

{a)  That  the  accused  struck  a  certain  officer  with  or  without  a 
certain  thing  or  weapon  or  drew  or  lifted  up  a  certain  weapon 
against  him  or  offered  violence  against  him,  as  alleged. 

(b)  That  such  officer  was  the  accused's  superior  officer  at  the  time. 

{c)  That  such  superior  officer  was  in  the  execution  of  his  office 
at  the  time,  as  alleged. 

II.  DISOBEYING  SUPERIOR  OFFICER. 

The  wUlful  disobedience  contemplated  is  such  as  shows  an  inten- 
tional defiance  of  authority,  as  where  a  soldier  is  given  an  order 

91487°— 17 15 


210  MANUAL  FOR  COUETS-MARTIAL. 

by  an  officer  to  do  or  cease  from  doing  a  particular  thing  at  once 
and  refuses  to  do  what  is  ordered  or  simply  omits  to  do  it. 

Where  the  order  is  operative  in  futuro  a  mere  neglect  to  comply 
with  it  "through  heedlessness,  remissness,  or  forgetfulness  is  an 
offense  chargeable  not  in  general  under  this  article^  but  under  the 
"general  article"  (Winthrop,  p.  884),  and  the  same  is  true  of  a 
mere  refusal  to  obey  such  an  order  before  the  time  set  for  its 
execution. 

The  order  must  relate  to  military  duty  and  be  one  which  the 
superior  officer  is  authorized  under  the  circumstances  to  give  the 
accused.  Disobedience  of  an  order  which  has  for  its  sole  object  the 
attainment  of  some  private  end  or  which  is  given  for  the  sole  pur- 
pose of  increasing  the  penalty  for  an  offense  which  it  is  expected  the 
accused  may  commit  is  not  punishable  under  this  article. 

An  accused  can  not  be  convicted  of  a  violation  of  this  article  if 
the  ordeit  was  in  fact  unlawful;  but,  unless  the  order  is  plainly 
illegal,  the  disobedience  of  it  is  punishable  imder  the  general  article, 
i.  e.,  the  ninety-sixth  article. 

To  justify  from  a  military  point  of  view  a  military  inferior  in 
disobeying  the  order  of  a  superior,  the  order  must  be  one  requiring 
something  to  be  done  which  is  palpably  a  breach  of  law  and  a  crime 
or  an  injury  to  a  third  person,  or  is  of  a  serious  character  (not  in- 
volving unimportant  consequences  only)  and  if  done  would  not  be 
susceptible  of  being  righted.  An  order  requiring  the  performance  of 
a  military  duty  or  act  can  not  be  disobeyed  with  impunity  unless  it 
has  one  of  these  characteristics. 

That  obedience  to  a  command  involved  a  violation  of  the  accused's 
religious  scruples  is  not  a  defense. 

Failure  to  comply  with  the  general  or  standing  orders  of  a  depart- 
ment, district,  post,  etc.,  or  with  the  Army  Regulations,  is  not  an 
offense  under  this  article,  but  under  the  ninety-sixth  article;  and 
so  of  a  nonperformance  by  a  subordinate  of  any  mere  routine  duty. 

The  form  of  the  order  is  immaterial  as  is  the  method  by  which  it 
is  transmitted  to  the  accused;  but  the  communication  must  amount 
to  an  order  and  the  accused  must  know  that  it  is  from  his  superior 
officer;  that  is,  a  commissioned  officer  who  is  authorized  to  give  the 
order  whether  he  is  superior  in  rank  to  the  accused  or  not. 

PEOOF. 

{a)  That  the  accused  received  a  certain  command  from  a  certain 
officer  as  alleged. 

(6)  That  such  officer  was  the  accused's  superior  officer. 
(6)  That  the  accused  willfully  disobeyed  such  command. 


PUNITIVE  ARTICLES. 


211 


SIXTY-FIFTH  ARTICLE. 

416.  Any  soldier  who  strikes  or  assaults,  or  who  attempts  or  threatens  to  strike 
or  assault,  or  willfully  disobeys  the  lawful  order  of  a  noncommissioned  officer 
while  in  the  execution  of  his  office,  or  uses  threatening  or  insulting  language, 
or  behaves  in  an  insubordinate  or  disrespectful  manner  toward  a  noncommis- 
sioned officer  while  in  the  execution  of  his  office,  shall  be  punished  as  a  court- 
martial  may  direct. 

Definitions  and  Principles. 

This  article  has  the  same  general  objects  with  respect  to  noncom- 
missioned officers  as  the  sixty-third  and  sixty-fourth  articles  have 
with  respect  to  commissioned  officers,  namely,  to  insure  obedience  to 
iheir  lawful  orders,  and  to  protect  them  from  violence,  insult,  or 
disrespect. 

The  terms  "  willful  disobedience,"  "  lawful  order,"  and  "  in  the  ex- 
ecution of  his  office  "  are  used  in  the  same  sense  as  in  the  sixty-fourth 
article. 

Analysis  and  Proof. 

The  article  applies  to  enlisted  men  only. 

The  article  embraces  offenses  indicated  by  the  following  diagram : 


Any  soldier  who 


Strikes 

1 

or 

Assaults 

or 

Attempts  1        r  Strike 

or            to  •        or 
Threatens  J        I  Assault 

A 

noncommissioned  officer  while  in 
the  execution  of  his  office. 

or 
Willfully     disobeys     the 
lawful  order  of 

or 

[  Threatem'ng  language 

Uses' 
Belia\ 

or 
Insultin 
or 

res  in  an 

g  language 
Insubordi 
Disresped 

nat€ 

or 
tful 

manner 
manner 

Toward  a  noncommis- 
sioned officer  while 
in  the  execution  of 
his  office. 

These  offenses  may  be  briefly  treated  imder  the  following  headings : 

I.  Assaulting  a  noncommissioned  officer. 

II.  Disobeying  a  noncommissioned  officer. 

III.  Using  threating  or  insulting  language  or  behaving  in  an 
insubordinate  or  disrespectful  manner  toward  a  noncommissioned 
officer. 


212  MANUAL  FOR  COURTS-MARTIAL. 

I.   ASSAULTING  A  IsONCOMISSIONED  OFFICER. 

For  definition  of  the  offense,  see  ninety-third  article,  item  IX. 

The  part  of  the  article  relating  to  assaults  covers  any  unlawful 
violence  against  a  noncommissioned  officer  in  the  execution  of  his 
office,  whether  such  violence  is  merely  threatened  or  is  advanced  in 
any  degree  toward  actual  application. 

PROOF. 

(a)  That  the  accused  soldier  struck  a  certain  noncommissioned 
officer  with  a  certain  thing,  or  assaulted,  or  attempted  or  threatened 
to  strike  or  assault  him  in  a  certain  manner,  as  alleged. 

(b)  That  such  noncommissioned  officer  was  at  the  time  in  the 
execution  of  his  office,  as  alleged. 

II.    DISOBEYING  A  NONCOMMISSIONED  OFFICER. 
PROOF. 

(a)  That  the  accused  soldier  received  a  certain  command  from  a 
certain  noncommissioned  officer,  as  alleged. 

(h)  That  the  noncommissioned  officer  was  in  the  execution  of  his 
office. 

(c)  That  the  accused  soldier  willfully  disobeyed  such  command. 

III.  USING  THREATENING  OR  INSULTING  LANGUAGE  OR  BEHAVING  IN  AN 
INSUBORDINATE  OR  DISRESPECTFUL  MANNER  TOWARD  A  NONCOMMIS- 
SIONED OFFICER. 

The  phrase  "  while  in  the  execution  of  his  office  "  limits  the  appli- 
cation of  this  part  of  the  article  to  language  and  behavior  within 
sight  or  hearing  of  the  noncommissioned  officer  toward  whom  it  is 
used ;  the  word  "  toward  "  not  being  used  in  the  same  sense  as  in  the 
sixty-third  article. 

PROOF. 

(a)  That  the  accused  used  certain  language  or  did  or  omitted  to 
do  certain  acts  under  certain  circumstances,  or  in  a  certain  manner 
or  with  a  certain  intended  meaning,  as  alleged. 

(h)  That  such  language  or  behavior  was  used  toward  a  certain 
noncommissioned  officer. 

(c)  That  such  noncommissioned  officer  was  at  the  time  in  the 
execution  of  his  office,  as  alleged. 


PUNITIVE   ARTICLES.  213 

SIXTY-SIXTH  ARTICLE. 

417.  Any  person  subject  to  military  law  who  attempts  to  create  or  who  begins, 
excites,  causes,  or  joins  in  any  mutiny  or  sedition  in  any  company,  party,  post, 
camp,  detachment,  guard,  or  other  command  shall  suffer  death  or  such  other 
punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles.^ 

Mutiny  imports  collective  insubordination,  and  necessarily  in- 
cludes some  combination  of  two  or  more  persons  in  resisting  lawful 
military  authority. 

Sedition  implies  the  raising  of  commotion  or  disturbance  against 
the  State;  it  is  a  revolt  against  legitimate  authority  and  differs 
from  mutiny  in  that  it  implies  a  resistance  to  lawful  civil  power. 

The  concert  of  insubordination  contemplated  in  mutiny  or  sedi- 
tion need  not  be  preconceived  nor  is  it  necessary  that  the  act  of 
insubordination  be  active  or  violent.  It  may  consist  simply  in  a 
persistent  and  concerted  refusal  or. omission  to  obey  orders  or  to 
do  duty  with  an  insubordinate  intent. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law. 
The  article  defines  five  offenses  relating  to  mutiny  and  five  relat- 
ing to  sedition. 

I.  Attempting  to  create  a  mutiny  (or  sedition). 

II.  Beginning  a  mutiny  (or  sedition). 

III.  Joining  in  a  mutiny  (or  sedition). 

IV.  Exciting  a  mutiny  (or  sedition). 

V.  Causing  a  mutiny  (or  sedition). 

I.  attempting  to  create  a  mutiny  or  sedition. 

An  attempt  to  commit  a  crime  is  an  act  done  with  specific  intent 
to  commit  the  particular  crime  and  proximately  tending  to,  but  fall- 
ing short  of,  its  consummation.  There  must  be  an  apparent  possi- 
bility to  commit  the  crime  in  the  manner  specified.  Voluntary 
abandonment  of  purpose  after  an  act  constituting  an  attempt  is 
not  a  defense. 

The  intent  which  distinguishes  mutiny  or  sedition  is  the  intent 
to  resist  lawful  authority  in  combination  with  others.  The  intent 
to  create  a  mutiny  or  sedition  may  be  declared  in  words,  or,  as  in 
all  other  cases,  it  may  be  inferred  from  acts  done  or  from  the 
surrounding  circumstances. 


214  MANUAL  FOB   COURTS-MARTIAL. 

A  single  individual  may  harbor  an  intent  to  create  a  wMtiny  and 
may  commit  some  overt  act  tending  to  create  a  mutiny  or  sedition 
and  so  be  guilty  of  an  attempt  to  create  a  mutiny  or  sedition,  alike 
whether  he  was  joined  by  others  or  not,  or  whether  a  mutiny  or  sedi- 
tion actually  followed  or  not. 

PEOOF. 

{a)  An  act  or  acts  of  accused  which  proximately  tended  to  create 
a  certain  intended  (or  actual)  collective  insubordination. 

(&)  A  specific  intent  to  create  a  certain  intended  (or  actual) 
collective  insubordination. 

(c)  That  the  insubordination  occurred  or  was  intended  to  occur 
in  a  company,  party,  post,  camp,  detachment,  guard,  or  other 
command. 

II-III.    BEGINNING  OR  JOINING  IN  A  MUTINY. 

There  can  be  no  actual  mutiny  or  sedition  until  there  has  been  an 
overt  act  of  insubordination  joined  in  by  two  or  more  persons,  and 
so  no  person  can  be  guilty  of  beginning  or  joining  in  a  mutiny  unless 
an  overt  act  of  mutiny  is  proved.  A  person  can  not  be  guilty  of 
hegirwdng  a  mutiny  unless  he  is  the  first,  or  among  the  first,  to 
commit  an  overt  act  of  mutiny;  a  person  can  not  join  in  a  mutiny 
without  joining  in  some  overt  act.  Hence  presence  of  the  accused 
at  the  scene  of  mutiny  is  necessary  in  these  two  cases. 

PKOOF. 

{a)  The  occurrence  of  certain  collective  insubordination  in  a  com- 
pany, party,  post,  camp,  detachment,  or  other  command. 

{h)  That  the  accused  began  or  joined  in  the  certain  collective 
insubordination. 

IV-V.    CAUSING   OR   EXCITING   A    MUTINY. 

As  in  II  and  III,  suyra^  no  person  can  be  guilty  of  coMsing  or  ex- 
citing a  mutiny  unless  an  overt  act  of  mutiny  follows  his  efforts. 
But  a  person  may  excite  or  cause  a  mutiny  without  taking  personal 
part  in  or  being  present  at  the  demonstrations  of  mutiny  which  result 
from  his  activities. 

PROOF. 

{(£)  The  occurrence  of  certain  collective  insubordination  in  a  cer- 
tain company,  party,  post,  camp,  detachment,  or  guard,  or  other 
command. 

(5)  Acts  of  the  accused  tending  to  create  or  excite  the  certain  col- 
lective insubordination. 


PUNITIVE  ARTICLES.  215 

SIXTY-SEVENTH  ARTICLE. 

418.  Any  officer  or  soldier  who,  being  present  at  any  mutiny  or  sedition,  does 
not  use  his  utmost  endeavor  to  suppress  the  same,  or  knowing  or  having  reason 
to  believe  that  a  mutiny  or  sedition  is  to  take  place,  does  not  without  delay  give 
information  thereof  to  his  commanding  officer  shall  suffer  death  or  such  other 
punishment  as  a  court-martial  may  direct. 

Definitions  and  pRiNCiPiiES. 

See  pages  213,  214. 
•  Analysis  and  Proof. 

The  article  applies  only  to  officers  and  soldiers.  It  defines  two 
offenses  relating  to  mutiny  and  two  relating  to  sedition. 

I.  Being  present  at  a  mutiny  {or  sedition),  failing  to  use  the 
utmost  endeavor  to  suppress  it. 

II.  Having  knowledge  or  reason  to  believe  that  a  mutiny  {or  sedi- 
tion) is  to  take  place,  failing  to  give  information  thereof  to  his 
commanding  officer  without  delay. 

I.  failure  to  suppress  mutiny   (OR  SEDITION). 

Mere  presence  countenancing  such  collective  insubordinations  and 
disturbances  as  mutinies,  riots,  and  seditions  has  been  considered 
criminal  for  over  a  century.  The  article  goes  a  step  further  and 
requires  of  officers  and  soldiers  their  utmost  endeavors  to  suppress 
such  disorders. 

One  is  not  present  at  a  mutiny  unless  an  act  or  acts  of  collective 
insubordination  occur  in  his  presence. 

Utmost  endeavor  is  a  relative  term.  The  rule  governing  the  lawful 
use  of  force  to  suppress  crime  or  arrest  wrongdoers  is  that  as  much 
force  may  be  used  as  is  reasonably  necessary  to  accomplish  the  desired 
purpose,  and  no  more.  This  article  has  been  construed  as  authoriz- 
ing and  requiring  the  most  extreme  measures — even  to  the  using  of 
a  dangerous  weapon  and  the  taking  of  life — where  such  extreme 
measures  are  reasonably  necessary.  But  all  the  circumstances  of 
necessity  are  to  be  considered.  Means  which  in  war  and  before  the 
enemy  would  be  not  only  justified,  but  laudable,  might,  in  time  of 
peace,  render  the  person  employing  them  criminally  and  civilly  liable 
for  abuse  of  authority. 

PBOOF. 

{a)  The  occurrence  of  an  act  or  acts  of  collective  insubordination 
in  the  presence  of  the  accused. 

{h)  Acts  or  omissions  of  the  accused  which  constitute  a  failure  to 
use  his  utmost  endeavor  to  suppress  such  acts. 


216  MANUAL  FOR  COUBTS-MAETIAL. 

n.   FAILURE  TO   GIVE   INFORMATION    OF    MUTINY    (OR   SEDITION). 

Where  circumstances  known  to  the  accused  are  such  as  would  haAe 
caused  a  reasonable  man  in  the  same  or  similar  circumstances  to 
believe  that  a  mutiny  or  sedition  was  impending,  these  circumstances 
will  be  sufficient  to  charge  the  accused  with  such  reason  to  believe  as 
will  render  him  culpable  under  the  article. 

It  is  not  a  necessary  element  of  the  crime  that  the  impending 
mutiny  or  sedition  materialize. 

"  Delay  "  imports  the  lapse  of  an  unreasonable  time  without  aition. 

The  expression  "commanding  officer"  here  includes  in  its  mean- 
ing any  officer  having  a  military  command  over  the  person  who  has 
Imowledge  or  reason  to  believe  that  a  mutiny  or  sedition  is  im- 
pending. 

PROOF. 

(fl^)That  the  accused  knew  that  a  mutiny  or  sedition  was  impend- 
ing or  that  he  knew  of  circumstances  that  would  have  induced,  in  a 
reasonable  man,  a  belief  that  a  mutiny  or  sedition  was  impending. 

(h)  Acts  or  omissions  of  the  accused  which  constitute  a  failure 
or  unreasonable  delay  in  informing  his  commanding  officer  of  his 
knowledge  or  belief. 

SIXTY-EIGHTH  ARTICLE. 

419.  All  officers  and  noncommissioned  officers  have  power  to  part  and  quell  all 
quarrels,  frays,  and  disorders  among  persons  subject  to  military  law  and  to 
order  officers  who  take  part  in  the  same  into  arrest,  and  other  persons  subject 
to  military  law  who  take  part  in  the  same  into  arrest  or  confinement,  as  cir- 
cumstances may  require,  until  their  proper  superior  officer  is  acquainted  there- 
with. And  whosoever,  being  so  ordered,  refuses  to  obey  such  officer  or  non- 
commissioned officer  or  draws  a  weapon  upon  or  otherwise  threatens  or  does 
violence  to  him  shall  be  punished  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

A  fray  is  a  fight  in  a  public  place  to  the  terror  of  the  people,  in 
which  acts  of  violence  occur  or  dangerous  weapons  are  exhibited  or 
threatened  to  be  used.  All  persons  aiding  or  abetting  a  fray  are 
principals.  The  word  "  frays  "  is  thus  seen  to  be  somewhat  restric- 
tive, but  the  words  "  quarrels  "  and  "  disorders "  include  any  dis- 
turbance of  a  contentious  character  from  a  mere  war  of  words  to 
a  rout  or  riot. 

To  quell  is  to  quiet,  allay,  abate,  or  put  down. 

It  is  immaterial  under  the  article  whether  the  officer  or  noncom- 
missioned officer  who  essays  to  part  or  quell  quarrels,  frays,  and  dis- 
orders is  on  a  duty  status  or  not,  as  it  is  immaterial  whether  the 


PUNITIVE   ARTICLES.  217 

persons   engaged    in   the    disorder    aj-e   superior   to   him   in   rank 
or  not. 

Analysis  and  Proof. 

The  punitive  portion  of  the  article  applies  to  all  persons  subject 
to  military  law.  It  is  designed  to  enforce  the  authority  of  officers 
or  noncommissioned  officers  to  part  and  quell  certain  disorders  and 
to  order  the  participants  into  confinement  or  arrest. 

The  article  defines  four  crimes: 

I.  Refusal  to  obey  an  order  of  an  officer  or  noncommissioned  officer 
placing  the  accused  in  arrest  or  confinement. 

II.  Upon  being  ordered  into  arrest  or  confinement,  drawing  a 
weapon  on  the  officer  or  noncommissioned  officer  giving  the  order. 

III.  Upon  being  ordered  into  arrest  or  confinement,  threatening 
the  officer  or  noncommissioned  officer  giving  the  order. 

IV.  Upon  being  ordered  into  arrest  or  confinement,  doing  vio- 
lence to  the  officer  or  noncommissioned  officer  giving  the  order. 

I.    DISOBEDIENCE  OF  ORDERS  INTO  ARREST  OR  CONFINEMENT. 

It  should  appear  that  the  power  conferred  by  the  article  was  being 
exercised  for  the  purpose  stated,  and  therefore  the  charges  and  proof 
should  refer  to  the  order  given  during  the  disorder.  It  should  be 
made  to  appear  that  the  accused  heard  or  understood  the  order  and 
knew  that  the  person  giving  it  was  an  officer  or  noncommissioned 
officer. 

PROOF. 

(a)  That  the  accused  was  a  participant  in  a  certain  quarrel,  fray, 
or  disorder  occurring  among  persons  subject  to  military  law. 

(b)  That  during  the  disorder  a  certain  officer  or  noncommissioned 
officer  ordered  the  accused  into  arrest  (if  accused  is  an  officer)  or 
into  arrest  or  confinement  (if  accused  is  a  person  subject  to  military 
law  other  than  an  officer),  with  a  view  to  quell  or  part  the  disorder. 

(c)  That  the  accused  refused  to  obey. 

II,   III,   IV.   THREATENING,   DRAWING   A   WEAPON   UPON,   OR   OFFERING   VIO- 
LENCE TO,  AN   OFFICER  OR   NONCOMMISSIONED   OFFICER. 

The  proof  of  the  second,  third,  and  fourth  crimes  defined  by  the 
article  should  follow  in  form  and  essentials  the  proof  required  under 
the  first  crime  (disobedience  of  order  into  arrest  or  confinement, 
supra),  except  that  instead  of  proving  a  refusal  to  obey  (par.  3, 
supra),  drawing  a  weapon,  making  a  threat,  or  doing  violence 
must  be  proved  as  the  consummation  of  the  particular  offense.  The 
word  threat  as  here  used  includes  any  menacing  action,  either  by 
gesture  or  b}^  words. 


218  MANUAL   FOR   COURTS-MARTIAL. 

Section  IV — Arrest;  Confinement, 

SIXTY-NINTH  ARTICLE, 

420.  An  officer  charged  with  crime  or  with  a  serious  offense  under  these  arti- 
cles shall  be  placed  in  arrest  by  the  commanding  officer,  and  in  exceptional  cases 
an  officer  so  charged  may  be  placed  in  confinement  by  the  same  authority.  A 
soldier  charged  with  crime  or  with  a  serious  offense  under  these  articles  shall 
be  placed  in  confinement,  and  when  charged  with  a  minor  offense  he  may  be 
placed  in  arrest.  Any  other  person  subject  to  military  law  charged  with 
crime  or  with  a  serious  offense  under  these  articles  shall  be  placed  in  confine- 
ment or  in  arrest,  as  circumstances  may  require;  and  when  charged  with  a 
minor  offense  such  pei'son  may  be  placed  in  arrest.  Any  person  placed  in  ar- 
rest under  the  provisions  of  this  article  shall  thereby  be  restricted  to  his  bar- 
racks, quarters,  or  tent,  unless  such  limits  shall  be  enlarged  by  proper  authority. 
Any  officer  who  breaks  his  arrest  or  who  escapes  from  confinement  before  he  is 
set  at  liberty  by  proper  authority  shall  be  dismissed  from  the  service  or  suffer 
such  other  punishment  as  a  court-martial  may  direct;  and  any  other  person 
subject  to  military  law  who  escapes  from  confinement  or  who  breaks  his  arrest 
before  he  is  set  at  liberty  by  proper  authority  shall  be  punished  as  a  court- 
martial  may  direct. 

definitions  and  principles. 

The  arrest  of  an  officer  has  been  compared  to  an  enlargement  ou 
bail,  the  security  being  the  officer's  commission.  It  is  for  this  rea- 
son that  the  punishment  may  include  dismissal.  The  distinction  be- 
tween arrest  and  confinement  lies  in  the  difference  between  the  kinds 
of  restraint  imposed.  In  arrest  the  restraint  is  moral  restraint  im- 
posed by  the  orders  fixing  the  limits  of  arrest,  or  by  the  terms  of  the 
article.    Confinement  imports  some  physical  restraint. 

Analysis  and  Proof. 

The  article  applies  to  all  persons  subject  to  military  law.  The 
article  defines  two  crimes : 

I.  Breach  of  arrest. 

II.  Escape  from  confinement. 

I.  breach  of  arrest. 

The  offense  is  committed  when  the  person  restrained  infringes  the 
limits  set  by  orders,  or  by  the  sixty-ninth  article  of  war,  and  the 
intention  or  motive  that  actuated  him  is  immaterial  to  the  issue  of 
guilt,  though,  of  course,  proof  of  inadvertence  or  hona  fide  mistake 
is  admissible  to  guide  the  court  in  assessing  punishment.  The  un- 
lawfulness of  the  arrest  is  a  valid  defense,  but  innocence  of  the  ac- 
cusation upon  which  the  arrest  is  imposed  is  entirely  irrelevant. 


PUNITIVE   ARTICLES.  219 

PROOF. 

(a)  That  the  accused  was  duly  placed  in  arrest. 

(b)  That  before  he  was  set  at  liberty  by  proper  authority  he  trans- 
gressed the  limits  fixed  by  the  sixty-ninth  article  of  war  or  by  the 
orders  of  proper  authority. 

II.  ESCAPE  FROM   CONFINEMENT. 

An  escape  may  be  either  with  or  without  force  or  artifice,  and 
either  with  or  without  the  consent  of  the  custodian.  Any  com- 
pleted casting  off  of  the  restraint  of  confinement,  before  being  set 
at  liberty  by  proper  authority,  is  an  escape  from  confinement,  and  a 
lack  of  effectiveness  of  the  physical  restraint  imposed  is  immaterial 
to  the  issue  of  guilt.  It  seems,  however,  that  an  escape  is  not  com- 
plete until  the  prisoner  has,  momentarily  at  least,  freed  himself  from 
the  restraint  of  his  confinement,  so,  if  the  movement  toward  escape 
is  opposed,  or  before  it  is  completed  an  immediate  pursuit  ensues, 
there  will  be  no  escape  until  opposition  is  overcome,  or  pursuit  is 
shaken  off.  In  cases  where  the  escape  is  not  completed  the  offense 
should  be  charged  as  an  attempt  under  the  ninety-sixth  article  of 
war. 

PBOOF. 

(a)  That  the  accused  was  placed  in  confinement. 
(h)  That  he  freed  himself  from  the  restraint  of  his  confinement 
before  he  had  been  set  at  liberty  by  proper  authority. 

SEVENTY-FIRST  ARTICLE. 

421.  No  provost  marshal  or  commander  of  a  guard  shall  refuse  to  receive  or 
keep  any  prisoner  committed  to  his  charge  by  an  officer  belonging  to  the  forces  of 
the  United  States,  provided  the  officer  committing  shall,  at  the  time,  deliver 
an  account  in  writing,  signed  by  himself,  of  the  crime  or  offense  charged  against 
the  prisoner.  Any  officer  or  soldier  so  refusing  shall  be  punished  as  a  court- 
martial  may  direct. 

Definitions  and  Principles. 

The  words  "commander  of  a  guard"  include  a  commander  of 
any  rank  or  grade,  and  hence  a  noncommissioned  officer  or  private. 
The  term  "  any  prisoner  "  includes  civil  as  well  as  military  prisoners 
who  are  committed  according  to  the  terms  of  the  article.  A  provost 
marshal  or  commander  of  a  guard  may  receive  a  prisoner  without 
an  account  of  the  charge  against  him  or  other  due  formality  of  com- 
mitment, but  he  mn^t  receive  the  prisoner  where  the  required  ac- 
count in  writing  accompanies  the  commitment. 

A  mere  name  or  description  of  the  offense  charged  in  common  par- 
lance when  written  and  signed  by  the  committing  officer  is  a- suffi- 
cient "  account  in  writing." 


220  MANUAL   FOB   COUKTS-MAETIAL. 

Analysis  and  Proof. 

The  article  applies  to  officer  and  soldiers. 
The  article  defines  one  crime : 

I.  REFUSING  TO  RECEIVE  OR  KEEP  A  PRISONER  COMMITTED  WITH  A  WRITTEN 
ACCOUNT  OF  THE  OFFENSE  CHARGED  AGAINST  HIM  SIGNED  BY  THE 
OFFICER  COMMITTING  THE  PRISONER. 

PROOF. 

(a)  That  the  accused  was  a  provost  marshal  or  commander  of  a 
guard. 

(h)  That  a  certain  prisoner  was  committed  to  his  charge  by  a 
certain  officer  belonging  to  the  forces  of  the  United  States. 

(c)  That,  at  the  time  of  commitment,  the  committing  officer  de- 
livered to  the  accused  a  written  account  of  the  crime  or  offense 
charged  against  the  prisoner,  which  account  was  signed  by  the 
committing  officer. 

(d)  That  the  accused  refused  to  receive  or  keep  the  prisoner. 

SEVENTY-SECOND  ARTICLE. 

422.  Every  commander  of  a  guard  to  whose  charge  a  prisoner  is  committed 
shall,  within  twenty^foiir  hours  after  such  confinement,  or  as  soon  as  he  is  re- 
lieved from  his  guard,  report  in  writing  to  the  commanding  officer  the  name  of 
such  prisoner,  the  offense  charged  against  him,  and  the  name  of  the  officer  com- 
mitting him;  and  if  he  fails  to  make  such  report  he  shall  be  punished  as  a 
court-martial  may  direct. 

Definitions  and  Principles. 

The  term  "commander  of  a  guard"  includes  commanders  of  any 
rank  or  grade. 

The  term  "  prisoner  "  includes  civilian  as  well  as  military  prisoners. 

The  term  "  commanding  officer  "  imports  the  commander  to  whom 
the  guard  report  is  properly  made. 

Analysis  and  Proof. 
The  article  applies  to  officers  and  soldiers.     It  defines  one  offense : 

I.  FAILURE  TO  RENDER  A  REPORT  AS  PRESCRIBED. 
PROOF. 

(a)  That  the  accused  was  commander  of  a  certain  guard. 
(h)  That  a  prisoner  was  committed  to  his  charge. 
(c)  That  the  accused — 

1.  Failed  to  make  any  report  at  all,  or, 

2.  That  the  report  rendered  was  not  in  writing,  or, 


PUNITIVE  ARTICLES.  221 

3.  That  no  report  was  rendered  within  24  hours  after  confinement, 
or  as  soon  as  accused  was  relieved  from  his  guard,  or, 

4.  That  the  report  failed  to  set  forth  one  or  more  of  the  particulars 
prescribed. 

SEVENTY-THIRD  ARTICLE. 

423.  Any  person  subject  to  military  law  who,  without  proper  authority,  re- 
leases any  prisoner  duly  committed  to  his  charge,  or  who  through  neglect  or 
design  suffers  any  prisoner  so  committed  to  escape,  shall  be  punished  as  a  court- 
martial  may  direct. 

Definitions  and  Principles. 

The  article  describes  three  long-recognized  common-law  crimes. 

It  looks  to  the  punishment  of  any  person  who  is  responsible  for 
the  unauthorized  release  or  escape  of  a  prisoner  duly  committed  to 
his  charge,  and  hence  any  member  of  a  guard,  party,  escort,  and 
convoy,  or  any  person  subject  to  military  law  to  whose  charge  a 
prisoner  is  committed  may  be  guilty  of  an  offense  under  this  article. 
Where  a  prisoner  is  committed  to  the  commander  of  a  guard,  party, 
escort,  or  convoy,  and  is  released  by,  or  escapes  from,  a  subordinate 
or  subordinates  to  whom  the  commander  has  duly  delegated  custody 
of  the  prisoner,  or  to  whom  that  custody  duly  falls  as  an  incident  of 
duty,  all  will  be  responsible  under  this  article,  except  those  who 
can  show  that  the  escape  or  release  occurred  under  circumstances 
against  which  they  could  not  reasonably  guard. 

The  words  "  any  prisoner "  import  both  military  and  civilian 
prisoners. 

A  person  may  receive  a  prisoner  in  his  capacity  as  commander  or 
member  of  a  guard,  or  he  may  be  burdened  with  such  a  responsibility 
as  a  personal  trust.  In  the  former  case,  the  lowest  authority  compe- 
tent to  release  the  prisoner  is  the  chief  of  the  command,  of  the  guard 
by  which  the  prisoner  is  held.  In  the  latter  case,  the  authority  who 
has  imposed  the  trust,  and  who  was  competent  to  do  so,  is  the  lowest 
"  proper  authority  "  to  order  a  release. 

While  a  commander  of  the  guard  must  receive  a  prisoner  properly 
committed  by  any  officer^  the  power  of  the  committing  officer  ceases 
as  soon  as  he  has  committed  the  prisoner,  and  he  is  not  a  "  proper 
authority  "  to  order  a  release. 

An  officer  is  not  responsible  under  this  article  unless  the  prisoner 
was  duly  coTnmitted^  but,  as  was  pointed  out  in  the  discussion  of  the 
seventy-first  article,  an  officer  may  receive  a  prisoner  not  committed 
in  strict  compliance  with  the  terms  of  that  article  or  other  law,  and 
if,  having  so  received  a  prisoner,  he  releases  such  prisoner,  or  suffers 
him  to  escape,  he  may  be  held  to  answer,  under  the  ninety-sixth 
article,  for  any  dereliction  of  duty  that  may  be  predicated  on  his 
conduct  in  the  case. 


222  MANUAL  FOR   COURTS-MARTIAL. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law. 
The  article  defines  three  crimes: 

I.  Releasing  a  prisoner  without  proper  authority. 

II.  Suffering  a  prisoner  to  escape  through  neglect. 

III.  Suffering  a  prisoner  to  escape  through  design. 

I.   RELEASING   A   PRISONER   WITHOUT  PROPER   AUTHORITY. 

A  release  imports  a  removal  of  restraint  from  the  prisoner  in 
which  the  custodian  is  the  sole  actor,  and  in  which  the  prisoner  takes 
no  initiative. 

PBOOF. 

(<z)  That  a  certain  prisoner  was  duly  committed  to  the  charge  of 
the  accused. 

(5)  That  the  accused  released  him  without  proper  authority. 

n.  SUFFERING  A  PRISONER  TO  ESCAPE  THROUGH   NEGLECT. 

The  word  "  neglect "  is  here  used  in  the  sense  of  the  word  "  negli- 
gence." 

Negligence  is  a  relative  term.  It  is  defined  in  law  as  the  absence  of 
due  care.  The  legal  standard  of  care  is  that  which  would  have  been 
taken  by  a  reasonably  prudent  man  in  the  same  or  similar  circum- 
stances. This  test  looks  to  the  standard  required  of  persons  acting 
in  the  capacity  in  which  the  accused  was  acting.  Thus,  if  the 
accused  is  an  officer,  the  test  will  be,  "How  would  a  reasonably 
prudent  officer  have  acted  ?  "•  If  the  circumstances  were  such  as 
would  have  indicated  to  a  reasonably  prudent  officer  that  a  very 
high  order  of  care  was  required  to  prevent  escape,  then  the  accused 
must  be  held  to  a  very  high  order  of  care.  The  test  is  thus  elastic, 
logical,  and  just. 

A  prisoner  can  not  be  said  to  have  escaped  until  he  has  overcome 
the  opposition  that  restrained  him,  and  shaken  off  immediate  pur- 
suit. Once  he  ha^  done  these  things,  the  fact  that  he  returns,  is 
taken  in  a  fresh  pursuit,  is  killed,  or  dies,  will  not  relieve  the  person 
accused  of  guilt  under  this  article. 

PEOOF. 

{a)  That  a  certain  prisoner  was  duly  committed  to  the  charge  of 
the  accused. 

(6)  That  the  prisoner  escaped. 

(<?)  That  the  accused  did  not  take  such  care  to  prevent  escape  as 
a  reasonably  prudent  person,  acting  in  the  capacity  in  which  the 


PUNITIVE  ARTICLES.  223 

accused  was  acting,  would  have  taken  in  the  same  or  similar  circum- 
stances.    (This  constitutes  neglect.) 

(d)  That  the  escape  was  the  proximate  result  of  the  neglect  of 
the  accused. 

III.    SUFFERING   A   PRISONER   TO   ESCAPE   THROUGH    DESIGN. 

In  law  a  wrongful  act  is  designed  when  it  is  intended  or  when  it 
results  from  conduct  so  shockingly  and  grossly  devoid  of  care  as  to 
leave  room  for  no  inference  but  that  the  act  was  contemplated  as  an 
extremely  probable  result  of  the  course  of  conduct  followed.  Thus, 
on  a  charge  of  suffering  a  prisoner  to  escape  through  design,  evidence 
of  gross  negligence  may  be  received  as  probative  of  design. 

It  sometimes  happens  that  a  prisoner  has  been  permitted  larger 
limits  than  should  have  been  allowed,  and  an  escape  is  consummated 
without  hindrance.  It  does  not  at  all  follow  that  such  an  escape  is 
to  be  considered  as  designed.  The  conduct  of  the  responsible  cus- 
todian is  to  be  examined  in  the  light  of  all  the  circumstances  of  the 
case,  the  heinousness  of  the  crime  with  which  the  prisoner  is  charged, 
the  notoriety  of  the  prisoner's  guilt,  the  probability  of  his  return, 
and  the  intention  and  motives  of  the  custodian. 

PBOOF. 

(a)  That  a  certain  prisoner  was  duly  committed  to  the  charge  of 
the  accused. 

(h)  That  the  prisoner  escaped. 

(c)  1.  Acts  of  the  accused  tending  to  permit  escape.  2.  Acts  of 
the  accused  probative  of  a  design  to  suffer  the  escape. 

(d)  That  as  a  result  of  these  acts  and  of  this  design  the  prisoner 
escaped. 

SEVENTY-FOURTH  ARTICLE. 

424.  When  any  person  subject  to  military  law,  except  one  who  is  held  by  tho 
military  authorities  to  answer,  or  who  is  awaiting  trial  or  result  of  trial,  or 
who  is  undergoing  sentence  for  a  crime  or  offense  punishable  under  these 
articles,  is  accused  of  a  crime  or  offense  committed  within  the  geographical 
limits  of  the  States  of  the  Union  and  the  District  of  Columbia,  and  punishable 
by  the  laws  of  the  land,  the  commanding  officer  is  required,  except  in  time  of 
war,  upon  application  duly  made,  to  use  his  utmost  endeavor  to  deliver  over 
such  accused  person  to  the  civil  authorities,  or  to  aid  the  officers  of  justice  in 
apprehending  and  securing  him,  in  order  that  he  may  be  brought  to  trial.  Any 
commanding  officer  who  upon  such  application  refuses  or  willfully  neglects, 
except  in  time  of  war,  to  deliver  over  such  accused  person  to  the  civil  au- 
thorities or  to  aid  the  officers  of  justice  in  apprehending  and  securing  him  shall 
be  dismissed  from  the  service  or  suffer  such  other  punishment  as  a  court- 
martial  may  direct. 

When,  under  the  provisions  of  this  article,  delivery  is  made  to  the  civil 
authorities  of  an  offender  undergoing  sentence  of  a  court-martial,  such  delivery, 
if  followed  by  conviction,  shall  be  held  to  interrupt  the  execution  of  the  sen- 


224  MANUAL  FOR  COURTS-MARTIAL. 

tence  of  the  court-martial,  and  the  offender  shall  be  returned  to  military  cus- 
tody, after  having  answered  to  the  civil  authorities  for  his  offense,  for  the 
completion  of  the  said  court-martial  sentence. 

Definitions  and  Peinciples. 

i.  refusing  to  delhter  accused  persons. 

The  words  "  commanding  officer,"  as  here  used,  import  the  officer 
who  is  chief  of  the  complete  integral  place,  body  of  troops,  or  de- 
tachment, wherein  the  person  accused  is  serving  at  the  time  appli- 
cation is  duly  made.  The  words  "  upon  application  duly  made " 
prescribe  a  condition  precedent  to  responsibility.  They  are  inserted 
to  prevent  the  possibility  of  false  arrests,  and  to  enable  the  com- 
manding officer  to  satisfy  himself  of  the  true  official  character  of 
him  who  makes  the  application,  of  the  subsistence  of  an  actual  accu- 
sation against  the  person  sought,  and  of  the  locus  of  the  charged 
crime  or  offense. 

The  commanding  officer  should  require  that  the  application  show 
that  the  crime  or  offense  is  alleged  to  have  been  committed  within 
the  geographical  limits  of  the  States  of  the  Union  and  the  District 
of  Columbia.  A  sufficient  form  of  application  will  be  a  written  com- 
munication setting  forth  the  fact  of  such  an  accusation  of  a  crime 
or  offense  committed  within  the  prescribed  limits  as  would  subject 
the  accused  person  to  arrest  by  the  civil  authorities  for  the  pur- 
poses of  trial,  or  that  a  warrant  for  such  arrest  has  issued,  and  a 
request  that  the  commanding  officer  deliver  the  person  accused  to  the 
civil  authorities  or  assist  them  in  apprehending  or  securing  him. 
When  the  military  jurisdiction  has  actively  attached  in  any  of  the 
ways  prescribed  in  the  article,  the  commanding  offi€er  may,  but  he  is 
not  required  to  make  the  prescribed  delivery. 

II.    REFUSING  TO  AID  IN  APPREHENDING  ACCUSED  PERSONS. 

The  commanding  officer  is  required  not  only  to  deliver  the  person 
accused  but  to  aid  in  apprehending  and  securing  him.  The  article 
therefore  contemplates  cases  where,  after  apprehension  by  either 
the  military  or  civil  authorities,  an  application  is  duly  made  to  a 
commanding  officer  for  his  assistance  in  semiring  a  person  subject  to 
military  law  and  accused  of  crime. 

"  Utmost  endeavor  "  is  to  be  understood  in  a  reasonable  sense  with 
reference  to  the  circumstaijces  of  the  particular  case.  Thus,  if  the 
accused  is  not  within  military  control,  as  where  he  is  absent  as  a 
deserter,  nothing  more  can  be  required  of  a  commander  than  to  fur- 
nish civil  authority  such  information  of  his  whereabouts  and  the 
prospect  of  his  return  as  may  be  available. 

While  commanding  officers  are  enjoined  to  use  their  utmost  en- 
deavor in  carrying  out  the  provisions  of  this  law,  a  mere  inadvertent 
neglect  to  take  some  necessary  step  toward  delivery,  apprehension, 
or  securing  of  the  person  accused  will  not  constitute  an  offense  under 
this  article,  which  contemplates  only  refusals  and  willful  neglects 
to  act. 


PUNITIVE  AETICLES.  225 

Analysis  and  Proof. 

The  punitive  portion  of  the  article  applies  only  to  officers,  but  the 
obligation  to  deliver  or  assist  in  apprehending  and  securing  rests  on 
all  persons  subject  to  military  law. 

The  article  defines  two  offenses : 

I.  Refusing  or  willfully  neglecting  to  deliver  an  accused  person. 

II.  Refusing  or  willfully  neglecting  to  aid  in  apprehending  and 
securing  an  accused  person. 

The  essentials  of  proof  are  similar  in  both  cases. 

PEOOF. 

(a)  That  the  accused  was  the  commanding  officer  of  a  certain 
integral  place,  body  of  troops,  or  detachment. 

(h)  That  a  certain  person  under  his  command  stood  accused  of  a 
certain  crime  or  offense,  committed  within  the  geographical  limits 
of  the  States  of  the  Union  and  the  District  of  Columbia. 

(c)  That  application  was  duly  made  to  the  accused  officer  by  a 
person  in  proper  civil  authority — 

1.  To  deliver  the  accused  person  to  the  civil  authorities ;  or 

2.  To  aid  the  officers  of  justice  in  apprehending  and  securing,  or 
either,  the  accused  person. 

(d)  Acts  or  omissions!  of  the  accused  officer  which  constitute  a 
refusal  or  a  willful  neglect  to  deliver  the  accused  person  or  to  aid 
in  apprehending  or  securing  him. 

Section  V. 

WAR  OFFENSES. 

SEVENTY-FIFTH   ARTICLE. 

425.  Any  officer  or  soldier  who  misbehaves  himself  before  the  enemy,  runs 
away,  or  shamefully  abandons  or  delivers  up  any  fort,  post,  camp,  guard,  or 
other  command  which  it  is  his  duty  to  defend,  or  speaks  words  inducing  others 
to  do  the  like,  or  casts  away  his  arms  or  ammunition,  or  quits  his  post  or  colors 
to  plunder  or  pillage,  or  by  any  means  whatsoever  occasions  false  alarms  in 
camp,  garrison,  or  quarters,  shall  suffer  death  or  such  other  punishment  as  a 
court-martial  may  direct. 

Definitions  and  Principi^s. 

Misbehavior  is  by  no  means  confined  to  acts  of  cowardice.  It  is 
a  general  term,  and  as  here  used  it  renders  culpable  under  this 
article  any  conduct  by  an  officer  or  soldier  not  conformable  to  the 
standard  of  behavior  before  the  enemy  set  by  the  history  of  our  arms. 
Running  away  is  but  a  particular  form  of  misbehavior  specifically 
made  punishable  by  this  article. 

91487°— 17 16 


226  MANUAL  FOR  COURTS-MARTIAL. 

"The  enemy"  imports  any  hostile  body  that  our  forces  may  be 
opposing  and  well  includes  a  rebellious  mob,  a  band  of  renegades,  or 
a  tribe  of  Indians. 

Analysis  and  Proof. 

The  article  applies  only  to  officers  and  soldiers.  It  defines  seven 
offenses : 

I.  Misbehavior  before  the  enemy. 

II.  Running  away  before  the  enemy. 

III.  Shamefully  abandoning  or  delivering  up  any  command. 

TV.  Speaking  words  inducing  others  to  misbehave,  run  away,  or 
abandon  or  deliver  up  any  command. 

V.  Casting  away  arms  or  ammunition. 

VI.  Quitting  post  or  colors  to  plunder  or  pillage. 

VII.  Occasioning  false  alarms. 

I.  MISBEHAVIOR  BEFORE  THE  ENEMY. 

Under  this  clause  may  be  charged  any  act  of  treason,  cowardice, 
insubordination,  or  other  unsoldierly  conduct  committed  in  the  pres- 
ence of  the  enemy. 

PBOOF. 

(a)  That  the  accused  was  serving  in  the  presence  of  an  enemy. 
(h)  Acts  or  omissions  of  the  accused  not  conformable  to  the  stand- 
ard of  soldierly  conduct  set  by  the  history  of  our  arms. 

n.  RUNNING  AWAY  BEFORE  THE  ENEMY. 

(a)  That  the  accused  was  serving  in  the  presence  of  an  enemy, 
(h)  That  he  misbehaved  himself  by  running  away. 

m.  SHAMEFULLY  ABANDONING  OR  DELIVERING  UP  ANY  COMMAND. 

While  the  word  "  abandon  "  is  broad  enough  to  include  a  case  in 
which  a  soldier  or  a  subordinate  officer  leaves  a  fort,  post,  guard,  or 
command  which  it  is  his  duty  to  defend,  it  is  probable  that  this  clause 
of  the  article  looks  only  to  offenses  by  the  commanding  officers  of 
such  commands,  and  that  abandonment  by  a  subordinate  should  be 
charged  as  misbehavior  or  running  away. 

The  words  "  deliver  up "  are  synonymous  with  the  word  "  sur- 
render." 

The  surrender  or  abandonment  of  a  command  by  an  officer  charged 
with  its  defense  can  only  be  justified  by  the  utmost  necessity  and 
extremity,  such  as  the  exhaustion  of  provisions  or  water,  the  ab- 
sence of  hope  of  relief,  and  the  certainty  or  extreme  probability 


PUNITIVE   ARTICLES.  227 

that  no  further  effort  could  prevent  the  place,  with  its  garrison, 
their  arms,  and  magazines,  from  presently  falling  into  the  hands  of 
the  enemy.  Unless  such  absolute  necessity  is  shown,  the  conclusion 
must  be  that  the  surrender  or  abandonment  was  shameful  within  the 
meaning  of  this  article. 

An  officer's  duty  to  defend  may  be  imposed  by  orders  or  by  the 
circumstances  in  which  he  finds  himself  at  a  particular  stage  of 
operations;  but  an  officer  will  find  less  justification  in  abandoning  a 
post  that  he  has  been  ordered  to  defend  than  in  abandoning  one  that 
he  has  decided  to  defend.  He  will  have  less  justification  in  deliver- 
ing up  a  post  than  in  abandoning  it,  and  in  delivering  up  a  post  that 
he  has  been  ordered  to  defend  he  will  have  no  justification  at  all 
except  such  as  can  be  found  in  proof  that  no  further  resistance  was 
possible. 

PEOOF, 

(a)  That  the  accused  was  charged  by  orders  or  by  circumstances 
with  a  duty  to  defend  a  certain  fort,  post,  camp,  guard,  or  other 
command. 

(b)  That  without  justification  he  abandoned  it  or  surrendered  it. 

IV.  SPEAKING    WORDS    INDUCING   OTHERS   TO    MISBEHAVE,   RUN    AWAY,   OR 
TO   ABANDON   OR  DELIVER  UP  ANY   COMMAND. 

The  words  "to  do  the  like"  refer  to  the  offenses  of  misbehavior 
and  running  away,  as  well  as  to  abandoning  or  delivering  up  a 
command. 

The  inducement  contemplated  is  verbal  only,  but  it  may  include 
any  argument,  persuasion,  threat,  language  of  discouragement  or 
alarm,  or  false  or  incorrect  statement  which  may  avail  to  bring  about 
an  unnecessary  surrender,  retreat,  or  any  misbehavior  before  the 
enemy.  The  offense  will  not  be  complete,  however,  unless  the  words 
spoken  do  induce  some  person  other  than  the  accused  to  misbehave, 
run  away,  or  abandon  or  surrender  a  command.  It  is  to  be  noted, 
however,  that  speaking  words  whose  natural  tendency  is  to  induce 
others  to  do  any  of  these  things  may  in  itself  constitute  misbehavior 
of  the  speaker  within  the  meaning  of  the  article,  although  the  words 
spoken  induce  no  misconduct  on  the  part  of  others. 

PROOF. 

(a)  That  some  person  other  than  the  accused  misbehaved  in  the 
presence  of  the  enemy  or  ran  away  or  abandoned  or  delivered  up  any 
command  which  it  was  his  duty  to  defend. 

(h)  Words  spoken  by  the  accused  which  induced  such  action. 


228  MANUAL  FOR   COURTS-MAKTIAL. 

V.    CASTIJsG  AAVAY  ARMS  OR  AMMUNITION. 

PROOF. 

(a)  That  the  accused  cast  away  certain  arms  or  ammunition  as 
specified. 

VI.  QUITTING   POST   OR    COLORS   TO    PLUNDER   OR   PILLAGE. 

The  word  "  post "  includes  any  place  of  duty,  whether  permanently 
or  temporarily  fixed.  The  term  "  colors  "  was  used  to  include  cases 
Avhere  the  offender's  organization  is  moving,  but  the  words  "  quits 
his  post,"  as  here  used,  import  any  unauthorized  leaving  of  that  place 
where  the  accused  should  be. 

In  proving  this  crime  an  intent  to  pillage  or  plunder  must  be 
shown.  The  words  "  to  pillage  or  plunder  "  may  be  properly  para- 
phrased "  to  seize  and  appropriate  public  or  private  property."  The 
offense  is  no  less  committed,  though  the  quitting  is  by  quasi  authority, 
as  where  soldiers  quit  the  place  where  they  should  be  to  go  forth 
and  maraud  in  company  with  an  officer  or  noncommissioned  officer. 

The  act  is  complete  when  the  accused  has  left  his  post  with  the 
described  intent,  although  he  may  never  have  consummated  his 
design. 

PEOOF. 

(a)  That  the  accused  left  his  post  of  duty. 

(h)  That  the  intention  of  the  accused  in  leaving  was  to  seize  and 
appropriate  private  or  public  property. 

VII.    OCCASIONING  FALSE   ALARMS. 

The  article  is  intended  as  well  to  guard  the  repose  and  tranquillity 
of  troops  as  to  avoid  the  ill  effect  on  morale  which  must  inevitably 
follow  needless  excursions  and  alarms.  The  article  contemplates 
the  spreading  of  false  and  disturbing  rumors  and  reports  as  well 
as  the  needless  giving  of  such  alarm  signals  as  the  beating  of  drums 
and  the  blowing  of  trumpets. 

The  intent  is  immaterial.  If  the  alarm  was  given,  and  it  appears 
that  there  was  no  material  cause  or  occasion  which  should  reasonably 
justify  a  general  alarm,  the  offense  is  complete. 


(a)  That  an  alarm  was  occasioned  in  a  certain  camp,  garrison,  or 
quarters. 

(h)  Conduct  of  the  accused  which  occasioned  the  alarm. 

(c)  That  there  was  no  reasonable  or  sufficient  justification  in  fact 
for  occasioning  the  alarm. 


PUNITIVE  ARTICLES.  229 

SEVENTY-SIXTH  ARTICLE. 

426.  If  any  commander  of  any  garrison,  fort,  post,  camp,  guard,  or  other  com- 
mand is  compelled,  by  the  officers  or  soldiers  under  his  command,  to  give  it  up 
to  the  enemy  or  to  abandon  it,  the  officers  or  soldiers  so  offending  shall  suffer 
death  or  such  other  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

When  the  surrender  or  abandonment  of  a  command  is  induced 
by  words  spoken,  the  offense  should  be  charged  under  the  seventy- 
fifth  article.  Where  the  surrender  or  abandonment  is  compelled  by 
acts  rather  than  words,  the  charge  should  be  laid  under  the  present 
article. 

The  offense  here  contemplated  is  very  like  that  of  a  mutiny  which 
results  in  the  surrender  or  abandonment  of  any  command,  but,  unlike 
mutiny,  no  concert  of  action  is  an  essential  element  of  this  offense. 
The  offense  is  not  complete  until  the  command  is  abandoned  or  given 
up  to  the  enemy.  The  compulsion  need  not  consist  in  the  use  of 
actual  violence  or  force.  A  refusal  to  obey  orders  or  to  do  duty  or 
to  participate  in  measures  of  defense  would  be  as  effective  compul- 
sion as  if  forcible  restraint  were  resorted  to. 

Analysis  and  Proof. 

The  article  applies  to  officers  and  soldiers. 
The  article  defines  one  crime. 

I.    SUBORDINATES   COMPELLING  COMMANDER  TO  SURRENDER. 

PROOF. 

(a)  That  a  certain  commander  has  abandoned  his  command  or 
given  it  up  to  the  enemy. 

(h)  That  the  accused  was  under  the  command  of  this  commander. 

{c)  Acts  or  omissions  of  the  accused  that  compelled  the  com- 
mander to  abandon  his  command  or  give  it  up  to  the  enemy. 

SEVENTY-SEVENTH  ARTICLE. 

427.  Any  person  subject  to  military  law  who  makes  known  the  parole  or  coun- 
tersign to  any  person  not  entitled  to  receive  it  according  to  the  rules  and  dis- 
cipline of  war,  or  gives  a  parole  or  countersign  different  from  that  which  he 
received,  shall,  if  the  offense  be  committed  in  time  of  war,  suffer  death  or  such 
other  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

A  countersign  is  a  word  given  from  the  principal  headcjuarters 
of  a  command  to  aid  guards  and  sentinels  in  their  scrutiny  of  persons 
who  apply  to  pass  the  lines. 


230  MANUAL  FOR  COURTS- MARTIAL. 

A  parole  is  a  word  used  as  a  check  on  the  countersign.  It  is  im- 
parted only  to  those  who  are  entitled  to  inspect  guards  and  to  com- 
manders of  guards. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law. 
It  defines  two  offenses : 

I.  Making  known  the  parole  or  countersign. 

II.  Giving  a  parole  or  countersign  different  from  that  received. 

I.  making  known  the  parole  or  countersign. 

The  class  of  persons  entitled  to  receive  the  countersign  will  expand 
and  contract  under  the  varying  circumstances  of  war.  Who  these 
persons  are  will  be  determined  largely,  in  any  particular  case,  by 
the  general  or  special  orders  under  which  the  accused  was  acting. 
It  is  no  defense  under  the  terms  of  this  law  that  the  accused  did  not 
know  that  the  person  to  whom  he  communicated  the  countersign 
or  parole  was  not  entitled  to  receive  it.  Before  imparting  such  a 
word  it  behooves  a  person  subject  to  military  law  to  determine  at  his 
peril  that  the  person  to  whom  he  presumes  to  make  known  the  word 
is  a  person  authorized  to  receive  it. 

The  intent  or  motive  that  actuated  the  accused  is  immaterial  to  the 
issue  of  guilt,  as  would  also  be  the  circumstance  that  the  imparting 
was  negligent  or  inadvertent.  It  is  likewise  immaterial  whether  the 
accused  had  himself  received  the  password  in  the  regular  course 
of  duty  or  whether  he  obtained  it  in  some  other  way. 

PEOOF. 

{a)  That  the  accused  made  known  the  countersign  or  parole  to  a 
certain  person,  known  or  unknown. 

(&)  That  the  person  was  not  entitled  to  receive  it. 

II.  GIVING  A  parole  OR   COUNTERSIGN   DIFFERENT  FROM   THAT  RECEIVED. 

The  intent  or  motive  that  actuated  the  accused  is  immaterial  to  the 
issue  of  guilt. 

PBOOF. 

{a)  That  the  accused  received  a  certain  countersign  or  parole. 
{h)  That  he  gave  a  parole  or  countersign  different  from  that 
which  he  received. 

SEVENTY-EIGHTH  ARTICLE. 

428.  Any  person  subject  to  military  law  who,  in  time  of  war,  forces  a  safe- 
guard shall  suffer  death  or  such  other  punishment  as  a  court-martial  may  direct. 


PUNITIVE  ARTICLES.  231 

Definitions  and  Principles. 

A  safeguard  is  a  detachment,  guard,  or  detail  posted  by  a  com- 
mander for  the  purpose  of  protecting  some  person  or  persons,  place, 
or  property.  The  term  also  imports  a  written  order  left  by  a  com- 
mander with  an  enemy  subject  or  posted  upon  enemy  property  for 
the  protection  of  the  individual  or  property  concerned. 

Any  trespass  on  the  protection  of  the  safeguard  will  constitute  an 
offense  under  the  article,  provided  that  the  accused  was  aware  of  the 
existence  of  the  safeguard. 

Analysis  and  Proof. 

The  article  applies  to  all  persons  subject  to  military  law. 
It  defines  one  offense : 

I.   FORCING   A    SAFEGUARD. 
PEOOF. 

(a)  That  a  safeguard  had  been  issued  or  posted  for  the  protection 
of  a  certain  person  or  persons,  place,  or  property. 

{b)  That,  with  knowledge  of  the  safeguard,  or  under  circum- 
stances that  charged  him  with  notice  of  the  safeguard,  the  accused 
trespassed  upon  its  protection. 

SEVENTY-NINTH  ARTICLE. 

429.  All  public  property  taken  from  the  enemy  is  the  property  of  the  United 
States  and  shall  be  secured  for  the  service  of  the  United  States,  and  any  person 
subject  to  military  law  who  neglects  to  secure  such  property  or  is  guilty  of 
wrongful  appropriation  thereof  shall  be  punished  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

Immediately  upon  its  capture  from  the  enemy  public  property 
becomes  the  property  of  the  United  States.  Neither  the  individual 
who  takes  it  nor  any  other  person  has  any  private  right  in  such 
property.  On  the  contrary,  every  person  subject  to  military  law 
has  an  immediate  duty  to  take  such  steps  as  are  within  his  powers 
and  functions  to  secure  such  property  to  the  service  of  the  United 
States  and  to  protect  it  from  destruction  or  loss. 

Analysis  and  Proof. 

The  article  applies  to  all  persons  subject  to  military  law.  See 
A.  W.  2. 

It  defines  two  offenses : 

I.  Neglecting  to  secure  captured  public  property. 

II.  Wrongful  appropriation  of  captured  public  property. 


232  MANUAL  FOR  COURTS-MARTIAL. 

I.    NEGLiECnNG   TO    SECURE    CAPTURED   PUBLIC   PROPERTY. 

The  neglect  will  consist  in  a  failure  to  take  such  steps  as  a  reason- 
ably prudent  man  acting  in  the  capacity  in  which  accused  was  acting 
would  have  taken  in  the  same  or  similar  circumstances  to  secure  the 
property  in  question  to  the  service  of  the  United  States. 


(a)  That  certain  public  property  was  captured  from  the  enemy. 

(&)  That  the  functions  of  the  accused  vested  him  with  a  certain 
power  and  imposed  on  him  a  certain  duty  to  secure  such  property 
to  the  service  of  the  United  States. 

(c)  Acts  or  omissions  of  the  accused  which  evidence  a  failure  to 
take  such  steps  to  secure  the  property  to  the  service  of  the  United 
States  as  would  have  been  taken  by  a  reasonably  prudent  person 
acting  in  the  capacity  in  which  the  accused  was  acting  and  in  the 
same  or  similar  circumstances. 

II.    WRONGFUL  APPROPRIATION    OF   CAPTURED   PUBLIC   PROPERTY. 

Any  unauthorized  and  unjustified  act  in  disposition  of  property 
which  is  inconsistent  with  the  true  owner's  right  of  complete  domin- 
ion over  it  is  a  wrongful  appropriation  of  it.  A  wrongful  appropria- 
tion is  distinguished  from  a  neglect  in  that  it  presumes  some  act 
while  a  neglect  may  consist  solely  in  an  omission. 

PBOOF. 

(a)  That  certain  public  property  was  captured  from  the  enemy. 

(h)  Acts  of  the  accused  in  disposition  of  the  captured  public  prop- 
erty, inconsistent  with  the  United  States  right  of  complete  dominion 
over  that  property. 

EIGHTIETH  ARTICLE. 

430.  Any  person  subject  to  military  law  who  buys,  sells,  trades,  or  in  any  way 
deals  in  or  disposes  of  captured  or  abandoned  property,  whereby  he  shall 
receive  or  expect  any  profit,  benefit,  or  advantage  to  himself  or  to  any  other  per- 
son directly  or  indirectly  connected  with  himself,  or  who  fails  whenever  such 
property  comes  into  his  possession  or  custody  or  within  his  control  to  give  notice 
thereof  to  the  proper  authority  and  to  turn  over  such  property  to  the  proper 
authority  without  delay,  shall,  on  conviction  thereof,  be  punished  by  fine  or 
imprisonment,  or  by  such  other  punishment  as  a  court-martial,  military  com- 
mission, or  other  military  tribunal  may  adjudge,  or  by  any  or  all  of  said 
penalties. 

Definitions  and  Principles. 

This  article  is  broader  than  the  preceding  one  in  the  following 
particulars:  It  protects  abandoned  as  well  as  captured  property  and 
private  as  well  as  public  property. 


PUNITIVE  ARTICLES.  233 

Unless  the  property  is  private  or  abandoned  property  or  unless 
the  acts  charged  fall  within  the  descriptions  of  this  article,  the 
offense  should  be  charged  under  article  79,  supra. 

Analysis  and  Proof. 

The  article  applies  to  all  persons  subject  to  military  law.  See 
A.  W.  2. 

It  defines  a  number  of  offenses  which  may  be  treated  as  follows : 

I.  Any  dealing  in  or  disposition  of  captured  or  abandoned  property 
whereb}^  the  accused  receives  or  expects  to  receive  an  advantage. 

II.  Failure  or  delay  in  reporting  the  receipt  of  and.  in  turning 
over  to  proper  authority  captured  or  abandoned  property. 

I.    DEALING   IN    CAPTURED   OR   ABANDONED   PROPERTY. 

This  portion  of  the  article  addresses  itself  to  several  specific  acts 
of  wrongful  dealings  and  looks  especially  to  cases  where,  in- 
stead of  appropriating  the  property  to  his  own  use  in  kind,  the 
accused  in  any  other  way  deals  with  it  to  advantage.  The  article 
prohibits  receipt  as  well  as  disposition  of  captured  or  abandoned 
property  by  barter,  gift,  pledge,  lease,  or  loan.  It  lies  against  the 
destruction  or  abandonment  of  such  property  if  any  of  these  acts  are 
done  in  the  receipt  or  expectation  of  profit,  benefit,  or  advantage  to 
the  actor  or  to  any  other  person  directly  or  indirectly  connected  with 
himself.  The  expectation  of  profit  need  not  be  founded  on  contract ; 
it  is  enough  if  the  prohibited  act  be  done  for  the  purpose,  or  in  the 
hope,  of  benefit  or  advantage,  pecuniary  or  otherwise. 

PROOF. 

{a)  That  the  accused  has  disposed  of,  dealt  in,  received,  etc.,  cer- 
tain public  or  private  or  abandoned  property. 

(6)  That  by  so  doing  the  accused  received  or  expected  some 
profit  or  advantage  to  himself  or  to  a  certain  person  connected  in  a 
certain  manner  with  himself. 

TI.  FAILURE  OR  DELAY  IN  REPORTING  THE  RECEIPT  OF  CAPTURED  OR  ABAN- 
DONED PROPERTY. 

Proper  authority  is  any  authority  competent  to  order  the  disposi- 
tion of  the  property  in  question,  and  the  required  report  should  be 
direct  or  through  such  channels  as  the  customs  and  rules  of  the  service 
prescribe. 

PROOF. 

{a)  That  certain  captured  or  abandoned  property  came  into  the 
possession,  custody,  or  control  of  the  accused. 


234  MANUAL  FOR  COURTS-MARTIAL. 

(h)  Acts  or  omissions  of  the  accused  which  evidence  his  failure  in 
reporting  the  receipt  of,  and  in  turning  over  without  delay,  such 
property  to  proper  authority. 

EIGHTY-FIRST  ARTICLE. 

431.  Whosoever  relieves  the  enemy  with  arms,  ammunition,  supplies,  money, 
or  other  thing,  or  knowingly  harbors  or  protects  or  holds  correspondence  with  or 
gives  intelligence  to  the  enemy,  either  directly  or  indirectly,  shall  suffer  death, 
or  such  other  punishment  as  a  court-martial  or  military  commission  may  direct. 

Definitions  and  Principles. 

"  Enemy  "  imports  enemy  citizens  as  well  as  soldiers  and  does  not 
restrict  itself  to  the  enemy  government  or  its  army.  All  the  citi- 
zens of  one  belligerent  are  enemies  of  the  Government  and  of  all  the 
citizens  of  the  other. 

Analysis  and  Proof. 

This  article  describes,  in  nearly  every  phrase,  an  overt  act  of 
treason.  The  word  whosoever,  as  it  is  here  used,  subjects  to  the  juris- 
diction of  courts-martial  and  military  commissions  all  persons,  either 
military  or  civil,  who,  in  the  theater  of  operations  and  during  the 
continuance  of  war  traffic  with  the  enemy  in  any  of  the  ways  herein 
denounced. 

The  article  defines  four  offenses : 

I.  Relieving  the  enemy. 

II.  Harboring  or  protecting  the  enemy. 

III.  Holding  correspondence  with  the  enemy. 

IV.  Giving  intelligence  to  the  enemy. 

I.  relieving  the  enemy. 

"Relieves,"  in  the  sense  here  used,  is  substantially  equivalent  to 
furnishes  or  supplies.  It  is  immaterial  whether  the  articles  furnished 
are  needed  by  the  enemy  or  whether  the  transaction  is  a  donation 
or  sale.  Knowledge  or  intent  is  not  an  essential  in  proof  of  this 
offense. 

PROOF. 

(a)  That  the  accused  either  directly  or  indirectly  furnished  the 
enemy  with  a  certain  article  or  articles. 

II.    HARBORING  OR  PROTECITNG  THE  ENEMY. 

An  enemy  is  harbored  or  protected  when  he  is  shielded  either 
physically  or  by  use  of  any  artifice,  aid,  or  representation  from  any 
injury  or  misfortune  which  in  the  chance  of  war  mav  befall  him.    It 


PUNITIVE   ARTICLES.  235 

must  appear  that  the  offense  is  knowingly  committed.  But,  as  in  all 
other  cases  where  knowledge  must  be  proved,  circumstances  sufficient 
to  put  a  reasonable  man  on  notice  will  be  sufficient  to  charge  the 
accused  with  notice. 

PBOOF. 

(a)  That  the  accused  harbored  or  protected  a  certain  person. 
(h)   That  the  person  so*  protected  was  an  enemy,  and  that  the 
accused  had  notice  or  is  chargeable  with  notice  of  this  fact. 

III.    HOLDING  CORRESPONDENCE  WITH  THE  ENEMY. 

Correspondence  does  not  necessarily  import  a  mutual  exchange  of 
communication.  The  rule  requires  absolute  nonintercourse,  and  any 
communication,  no  matter  what  may  be  its  tenor  or  intent,  is  here 
denounced.  The  prohibition  lies  against  any  method  of  communica- 
tion whatsoever,  from  the  winking  of  an  eye  to  the  sending  of  script, 
and  the  offense  is  complete  the  moment  the  communication  emanates 
from  the  accused  whether  it  reaches  its  destination  or  not.  The 
words  "directly  or  indirectly"  are  construed  as  applying  to  this 
offense,  and  they  include  within  the  prohibition  communications 
printed  in  newspapers  and  intended  for  the  enemy  and  to  com- 
munications conveyed  to  the  enemy  through  friendly  or  neutral  hands. 
It  is  essential  to  prove  that  the  offense  was  knowingly  committed. 

Citizens  of  neutral  powers  resident  in  or  visiting  invaded  or  occu- 
pied territory  can  claim  no  immunity  from  the  customary  laws  of  war 
which  threaten  punishment  for  communication  with  the  enemy.  The 
offense  of  communicating  with  the  enemy  when  committed  by  a  resi- 
dent of  occupied  territory  constitutes  war  treason  and  is  properly 
charged  under  this  article. 

PROOF. 

(a)  That  the  accused  uttered  a  certain  communication. 

(h)  That  the  communication  was  intended  for  a  certain  person, 
and  that  the  accused  had  notice  or  is  chargeable  with  notice  that  this 
person  was  an  enemy. 

IV.    GIVING  INTELLIGENCE  TO  THE  ENEMY. 

This  is  a  particular  case  of  corresponding  with  the  enemy  rendered 
more  heinous  by  the  fact  that  the  communication  contains  intelligence 
that  may  be  useful  to  the  enemy  for  any  of  the  multifarious  reasons 
that  make  information  valuable  to  belligerents.  As  in  the  preceding 
case,  knowledge  must  be  proved,  and  it  is  immaterial  to  the  issue  of 
guilt  whether  the  intelligence  was  conveyed  by  direct  or  indirect 
means.  The  word  "  intelligence  "  imports  that  the  information  con- 
veyed is  true,  at  least  in  part. 


236  MANUAL  FOR   COURTS-MAETIAL. 


PROOF. 

(a)  That  the  accused  knowingly  conveyed  to  the  enemy  certain 
information. 

(h)  That  the  information  was  true,  at  least  in  part. 

EIGHTY-SECOND  ARTICLE. 

432.  Any  person  who  in  time  of  war  shall  be  found  lurking  or  acting  as  a  spy 
in  or  about  any  of  the  fortifications,  posts,  quarters,  or  encampments  of  any 
of  the  armies  of  the  United  States,  or  elsewhere,  shall  be  tried  by  a  general 
court-martial  or  by  a  military  commission,  and  shall,  on  conviction  thereof, 
suffer  death. 

Definitions  and  Principles. 
See  below. 

Analysis  and  Proof. 

The  words  "  any  person  "  bring  within  the  jurisdiction  of  courts- 
martial  and  military  commissions  all  persons  of  whatever  nationality 
or  civil  status  who  may  be  accused  of  the  offense  denounced  by  the 
article. 

The  article  defines  one  crime — being  a  spy. 

I.  BEING  a  spy. 

The  principal  characteristic  of  this  offense  is  a  clandestine  dissimu- 
lation of  the  true  object  sought,  which  object  is  an  endeavor  to  obtain 
information  with  the  intention  of  communicating  it  to  the  hostile 
party. 

Thus,  soldiers  not  wearing  disguise,  dispatch  riders,  whether  sol- 
diers or  civilians,  and  persons  in  aircraft  who  carry  out  their  mis- 
sions openly  and  who  have  penetrated  hostile  lines  are  not  to  be 
considered  spies,  for  the  reason  that,  while  they  may  have  resorted 
to  concealment,  they  have  practiced  no  dissimulation. 

It  is  necessary  to  prove  an  intent  to  communicate  information  to 
the  hostile  party.  This  intent  will  very  readily  be  presumed  on 
proof  of  a  deceptive  insinuation  of  the  accused  among  our  forces,  but 
this  presumption  may  be  rebutted  by  very  clear  evidence  that  the 
person  had  come  within  the  lines  for  a  comparatively  innocent  pur- 
pose, as  to  visit  his  family  or  that  he  has  assumed  a  disguise  to 
enable  him  to  reach  his  own  lines. 

It  is  not  essential  that  the  accused  obtain  the  information  sought 
or  that  he  communicate  it.  The  offense  is  complete  with  the  lurking 
or  dissimulation  with  intent  to  accomplish  these  objects. 

An  act  of  espionage  completed  by  the  escape  of  the  accused  to  his 
own  lines  can  not  be  the  subject  of  trial  if  the  quondam  spy  is  later 
captured. 

A  person  living  in  occupied  territory  who,  without  dissimulation, 
merely  reports  Avhat  he  sees  or  what  he  hears  through  agents  to  the 


PUNITIVE  ARTICLES.  237 

enemy  mav  be  charged  under  the  preceding  article  with  communi- 
cating or  giving  intelligence  to  the  enemy,  but  he  may  not  be  charged 
under  this  article  with  being  a  spy. 

PROOF. 

(a)  That  the  accused  was  found  at  a  certain  place  within  our  lines, 
acting  clandestinely,  or  under  false  pretenses. 

(h)  That  he  was  obtaining,  or. endeavoring  to  obtain,  information 
with  intent  to  communicate  the  same  to  the  enemy. 

Section  VI. 
MISCELLANEOUS  CRIMES  AND  OFFENSES. 

EIGHTY-THIRD   ARTICLE. 

433.  Any  person  subject  to  military  law  who  willfully,  or  through  neglect, 
suffers  to  be  lost,  spoiled,  damaged,  or  wrongfully  disposed  of,  any  military 
property  belonging  to  the  United  States  shall  make  good  the  loss  or  damage 
and  suffer  such  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

The  loss,  etc.,  may  be  said  to  be  willfully  suffered  when  the  accused 
knowing  the  loss,  etc.,  to  be  imminent  or  actually  going  on,  takes  no 
steps  to  prevent  it,  as  where  a  sentinel  seeing  a  small  and  readily 
extinguishable  fire  in  a  stack  of  hay  on  his  post  allows  it  to  burn  up. 
A  suffering  through  neglect  implies  an  omission  to  take  such  meas- 
ures as  were  appropriate  under  the  circumstances  to  prevent  a 
probable  loss,  damage,  etc. 

The  willful  or  neglectful  sufferance  specified  by  the  article  may 
consist  in  a  deliberate  violation  or  positive  disregard  of  some  specific 
injunction  of  law,  regulations,  or  orders;  or  it  may  be  evidenced  by 
such  circumstances  as  a  reckless  or  unwarranted  personal  use  of  the 
property;  causing  or  allowing  it  to  remain  exposed  to  the  weather, 
insecurely  housed  or  not  guarded;  permitting  it  to  be  consumed, 
wasted,  or  injured  by  other  persons;  loaning  it  to  an  irresponsible 
person  by  whom  it  is  damaged,  etc.     (Winthrop,  p.  862.) 

Analysis  and  Proof. 

The  article  applies  to  any  one  subject  to  military  law.  See 
article  2. 

The  article  embraces  eight  offenses,  indicated  by  the  following- 
diagram  : 
.  ^  .  ...ar  f  Any  mill 


military   f  , 

law  who     J  Through  neglect  j 


or  >  Suffers  to  be 


Lost, 

Spoiled, 

Damaged, 

or 
Wrongfully  disposed  of 


tary  prop- 
erty be- 
longing to 
the  United 

States. 


238 


MANUAL  FOB  COUBTS-MARTIAL. 


These  offenses  may  be  briefly  treated  under  the  heading  "  Suffering 
military  property  to  be  lost,  etc." 


PEOOF. 

(a)  That  certain  military  property  was  lost,  spoiled,  damaged, 
or  wrongfully  disposed  of  in  the  nianner  alleged. 

(h)  That  such  loss,  spoiling,  damage,  or  wrongful  disposition 
was  suffered  by  the  accused  through  a  certain  omission  of  duty  on  his 
part. 

(c)  That  such  omission  was  willful,  or  negligent,  as  alleged. 

(d)  The  value  of  the  property,  as  alleged. 

EIGHTY-FOURTH  ARTICLE. 

434.  Any  soldier  who  sells  or  wrongfully  disposes  of  or  willfully  or  through 
neglect  injures  or  loses  any  horse,  arms,  ammunition,  aceouterments,  equip- 
ment, clothing,  or  other  property  issued  for  use  in  the  military  service,  shall  be 
punished  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  definitions  under  A.  W.  80,  pages  232,  233. 

Aceouterments  applies  in  the  military  sense  to  those  parts  of  the 
soldier's  equipment  which  are  issued  by  the  Ordnance  Depart- 
ment *  *  *  iix  connection  with  his  arms  and  ammunition,  such, 
for  example,  as  belts  and  cartridge  pouches.     (Digest,  p.  1084.) 

Clothing  includes  all  articles  of  clothing  whether  issued  under  a 
clothing  allowance  or  otherwise,  for  example,  overcoats  and  sweaters 
as  now  issued  are  articles  of  clothing.  That  the  property  sold,  dis- 
posed of,  lost,  or  injured  was  issued  to  someone  other  than  the  ac- 
cused is  immaterial;  the  article  applies  to  any  property  issued  for 
use  in  the  military  service. 

Analysis  and  Proof. 

This  article  applies  to  enlisted  men  only. 

The  article  defines  a  number  of  offenses,  indicated  by  the  following 
diagram : 


\iiy  soldier  who 


Sells 

or 
Wrongfully  disposes  of 

or 
Willfully  f  Injures 


Through  neglect 


or 
Loses 


Any 


Horse, 

Arms, 

Ammunition, 

Aceouterments, 

Equipment, 

Clothing, 

or 
other  property 


Issued     foe 
use  in  the 
military 
service. 


PUNITIVE   ARTICLES.  239 

These  offenses  may  be  treated  under  the  following  heads : 

I.  Selling  or  wrongfully  disposing  of  military  property. 

II.  Willfully  or  through  neglect  injuring  or  losing  military 
property. 

I.  SEUDING  OR  WRONGFULLY  DISPOSING  OF  MILITARY  PROPERTY. 

See  matter  under  A.  W.  80,  Item  I. 

PBOOF. 

{a)  That  the  accused  soldier  sold  or  otherwise  disposed  of  cer 
tain  property  in  the  maimer  alleged. 

(b)  That  such  disposition  was  wrongful. 

{c)  That  the  property  was  issued  for  use  in  the  military  service. 

{d)  The  value  of  the  property  as  alleged. 

U.    WII4LFUL1LY    OR    THROUGH    NEGLECT    INJURING    OR    LOSING    MILITARY 

PROPERTY. 

A  wUlful  mjury  or  loss  is  one  that  is  irUentionally  occasioned.  A 
loss  or  injury  is  occasioned  throujgh  neglect  when  it  is  the  result 
of  a  want  of  such  attention  to  the  nature  or  probable  consequences  of 
an  act  or  omission  as  was  appropriate  under  the  circumstances. 

Accouterments  applies  in  the  military  sense  to  those  parts  of  the 
soldier's  equipment  which  are  issued  by  the  Ordnance  Depart- 
ment in  connection  with  his  arms  and  ammunition,  such  for  example 
as  belts  and  cartridge  pouches.    (Digest,  p.  1084.) 

Clothing  includes  all  articles  of  clothing,  whether  issued  under 
a  clothing  allowance  or  otherwise;  for  example,  overcoats  and 
sweaters  as  now  issued  are  articles  of  clothing.  That  the  property 
sold,  disposed  of,  lost,  or  injured  was  issued  to  some  one  other  than 
the  accused  is  immaterial ;  the  article  applies  to  any  property  issued 
for  use  in  the  military  service. 

PEOOF. 

{a)  That  certain  property  was  injured  in  a  certain  way  or  lost, 
as  alleged. 

{h)  That  such  property  was  issued  for  use  in  the  military  service. 

{c)  That  such  injury  or  loss  was  willfully  caused  by  the  accused 
in  a  certain  manner,  as  alleged ;  or  that  such  injury  or  loss  was  the 
result  of  certain  neglect  on  the  part  of  the  accused. 

{d)  The  value  of  the  property,  as  alleged. 

EIGHTY-FIFTH  ARTICLE. 

435.  Any  officer  who  is  found  drunk  on  duty  shall,  if  the  offense  be  committed 
In  time  of  war,  be  dismissed  from  the  service  and  suffer  such  other  punishment 
as  a  court-martial  may  direct ;  and  if  the  offense  be  committed  in  time  of  peace, 


240  MANUAL  FOR   COURTS-MAETIAL. 

he  shall  be  punished  as  a  court-martial  may  direct.  Any  person  subject  to  mili- 
tary law,  except  an  officer,  who  is  found  drunk  on  duty  shall  be  punished  as  a 
court-martial  may  direct. 

Definitions  and  Principles. 

The  article  does  not  require  that  the  accused  shall  have  become 
drunk,  but  that  he  shall  have  been  found,  i.  e.,  discovered  or  per- 
ceived, to  be  drunk,  when  on  duty,  and  it  does  not  therefore  neces- 
sarily follow  that  his  drunkenness  shall  have  commenced  after  the 
duty  has  been  entered  upon.  To  permit  an  officer  or  soldier,  when 
inebriated,  to  go  upon  any  duty  of  importance,  while  in  general  in- 
volving an  injustice  to  the  individual,  is  also  a  reprehensible  act  and 
a  military  offense  in  the  superior  who  knowingly  suffers  it.  But  the 
fact  that  he  was  already  intoxicated  can  not  render  the  party  himself 
any  the  less  legally  liable  under  the  article,  if,  after  having  entered 
upon  the  duty,  his  intoxication  continues  and  his  condition  is  de- 
tected. But,  on  the  other  hand,  a  soldier  (or  officer), is  not  "  found" 
drunk  in  the  sense  of  the  article,  if  he  is  simply  discovered  to  be 
drunk  when  ordered,  or  otherwise  required,  to  go  upon  the  duty,  upon 
which,  because  of  his  condition,  he  does  not  enter  at  all.  (Winthrop, 
pp.  944,  945.) 

Whether  the  drunkenness  was  caused  by  liquor  or  drugs  is  imma- 
terial, but  where  the  sole  cause  was  a  liquor  or  drug  duly  prescribed 
by  a  medical  officer  of  the  Army  or  a  civil  physician  and  taken  in 
good  faith  according  to  the  prescription  no  offense  is  committed. 

The  fact  that  the  accused,  owing  to  an  unsuspected  susceptibility, 
permanent  or  temporary,  was  made  drunk  by  indulging  in  a  very 
small  amount  of  intoxicant  is  not  a  defense. 

Any  intoxication  which  is  sufficient  to  sensibly  impair  the  rational 
and  full  exercise  of  the  mental  and  physical  faculties  is  drunkenness 
within  the  meaning  of  the  article.     (Digest,  p.  540.) 

Where  the  accused  is  charged  under  this  article,  a  conviction  under 
the  general  article  of  being  under  the  influence  of  liquor  is  wholly 
inconsistent  if  he  was  found  in  such  condition  while  on  duty.  The 
article  requires  no  particular  degree  of  drunkenness,  and  if  the  ac- 
cused was  found  so  far  under  the  influence  of  liquor  as  to  be  punish- 
able at  all  he  was  found  drunk  on  duty  within  the  meaning  of  this 
article. 

The  term  "  duty  "  as  used  in  this  article,  means  of  course  military 
duty.  But — it  is  important  to  note — every  duty  which  an  officer  or 
soldier  is  legally  required,  by  superior  military  authority,  to  execute, 
and  for  the  proper  execution  of  which  he  is  answerable  to  such  au- 
thority, is  necessarily  a  military  duty.     (Winthrop,  p.  949.) 


PUNITIVE   ARTICLES.  241 

The  words  ''  on  duty,"  as  used  in  this  article,  have  also  received  an 
authoritative  interpretation.  As  applied  to  the  commanding  officer 
of  a  post,  or  of  an  organization,  or  detachment  in  the  field,  the  senior 
officer  present,  in  the  actual  exercise  of  command,  is  constantly  on 
duty ;  the  term  being  here  used  in  contradistinction  to  "  on  leave."  In 
the  case  of  other  officers,  or  of  enlisted  men,  the  term  "  on  duty  "  has 
been  held  to  relate  to  the  performance  of  duties  of  routine  or  detail, 
in  garrison  or  in  the  field ;  the  words  "  off  duty,"  in  respect  to  such 
persons,  relating  to  such  periods  or  occasions  when,  no  duty  being 
required  of  them  by  orders  or  regulations,  officers  and  men  are  said 
to  occupy  that  status  of  leisure  known  to  the  service  as  being  "  off 
duty."     (Davis,  p.  408.) 

In  time  of  war  and  in  a  region  of  active  hostilities  the  circum- 
stances are  often  such  that  all  members  of  a  command  may  properly 
be  considered  as  being  continuously  on  duty  within  the  meaning  of 
this  article. 

A  medical  officer  of  a  post,  where  there  are  constantly  sick  persons 
under  his  charge  who  may  at  any  moment  require  his  attendance, 
may,  generally  speaking,  be  deemed  to  be  "  on  duty  "  in  the  sense  of 
the  article  during  the  whole  day  and  not  merely  during  the  hours 
regularly  occupied  by  sick  call,  visiting  the  sick,  or  attending  hos- 
pital. If  found  drunk  at  any  other  hour  he  may  in  general  be 
charged  with  an  offense  under  this  article.     (Digest,  p.  127.) 

So,  also,  an  officer  of  the  day  and  members  of  the  guard  are  on 
duty  during  their  entire  tour  within  the  meaning  of  this  article, 
but  a  sentinel  found  drunk  on  post  is  chargeable  under  the  next  suc- 
ceeding article.  The  article  also  applies  to  cases  where  the  duty 
being  performed  is  merely  a  preliminary  one,  such  as  a  reporting 
for  inspection  by  a  soldier  designated  for  guard  or  a  reporting  under 
orders  for  duty  at  a  post  to  the  commanding  officer. 

The  offense  of  a  person  who  absents  himself  from  his  duty  and  is 
found  drunk  while  so  absent,  or  who  is  relieved  from  duty  at  a  post 
and  ordered  to  remain  there  to  await  orders,  and  is  found  drunk 
during  such  status,  is  not  chargeable  under  this  article. 

Analysis  and  Proof. 

This  article  applies  to  any  person  subject  to  military  law.  See 
article  2. 

The  article  defines  one  offense,  namely,  being  found  drunk  on  duty. 

I.    BEING   FOUND    DRUNK   ON    DUTY. 


(a)  That  the  accused  was  on  a  certain  duty,  as  alleged. 
(h)  That  he  was  found  drunk  while  on  such  duty. 

91487^—17 17 


242  MANUAL  FOR  COUETS-MARTIAL. 

EIGHTY-SIXTH  ARTICLE. 

436.  Any  sentinel  who  is  found  drunk  or  sleeping  upon  his  post,  or  who  leaves 
it  before  he  is  regularly  relieved,  shall,  if  the  offense  be  committed  in  time  of 
war,  suffer  death  or  such  other  punishment  as  a  court-martial  may  direct ;  and 
if  the  offense  be  committed  in  time  of  peace,  he  shall  suffer  any  punishment, 
except  death,  that  a  court-martial  may  direct. 

Definitions  and  Principles. 

As  to  drunkenness,  see  matter  under  eighty-fifth  article,  page  240. 

The  term  "  sentinel  "  does  not  include  a  loatcJinmri, 

A  sentinel  is  on  post  within  the  meaning  of  this  article  not  only 
when  he  is  walking  a  duly  designated  sentinel's  post,  as  is  ordinarily 
the  case  in  garrison,  but  also  "  when  he  may  be  stationed  in  observa- 
tion against  the  approach  of  an  enemy,  or  on  post  to  maintain  in- 
ternal discipline,  or  to  guard  stores,  or  to  guard  prisoners  while  in 
confinement  or  at  work."     (Digest,  p.  128.) 

The  fact  that  the  sentinel  was  not  posted  in  the  regular  way  is  not 
a  defense. 

Analysis  and  Proof. 

The  article  applies  only  to  sentinels. 
The  article  defines  three  offenses,  namely : 

I.  Being  found  drunk  on  post. 

II.  Being  found  sleeping  on  post. 

III.  Leaving  post  before  being  relieved. 

T.  being  found  drunk  on  post. 
As  to  drunkenness,  see  matter  under  eighty-fifth  article,  page  240. 

PEOOF. 

{a)  That  the  accused  soldier  was  posted  as  a  sentinel  on  a  certain 
post,  as  alleged. 

(&)  That  he  was  found  drunk  while  on  such  post. 

II.    BEING  FOUND  SLEEPING  ON  POST. 

The  fact  that  the  accused  had  been  previously  overtaxed  by  exces- 
sive guard  duty  is  not  a  defense,  although  evidence  to  that  effect  may 
be  received  in  extenuation  of  the  offense. 

PROOF. 

{a)  That  the  accused  soldier  was  posted  as  a  sentinel  on  a  certain 
post,  as  alleged. 

(b)  That  he  was  found  sleeping  while  on  such  post. 

III.    LEAVING  POST  BEFOltE  BEING  RELIEVED. 

The  offense  of  leaving  post  is  not  committed  when  a  sentinel  goes 
an  immaterial  distance  from  the  point,  path,  area,  or  object  which 
was  prescribed  as  his  post. 


PUNITIVE   ARTICLES.  243 

PROOF. 

(a)  That  the  accused  soldier  was  posted  as  a  sentinel  on  a  certain 
post,  as  alleged. 

(b)  That  he  left  such  post  without  being  regularly  relieved. 

EIGHTY-SEVENTH  ARTICLE. 

437.  Any  officer  commanding  in  any  garrison,  fort,  barracks,  camp,  or  other 
place  where  troops  of  the  United  States  may  be  serving  who,  for  his  private 
advantage,  lays  any  duty  or  imposition  upon  or  is  interested  in  the  sale  of  any 
victuals  or  other  necessaries  of  life  brought  into  such  garrison,  fort,  barracks, 
camp,  or  other  place  for  the  use  of  the  troops,  shall  be  dismissed  from  the 
service  and  suffer  such  other  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  terms  of  the  article. 

Analysis  and  Proof. 

This  article  applies  to  commanding  officers  only. 
The  article  defines  offenses  which  may  be  treated  under  two  heads, 
as  follows: 

I.  Laying  a  duty  or  imposition  upon  the  bringing  in  of  victuals, 
etc. 

II.  Being  interested  in  the  sale  of  victuals,  etc. 

I.  LAYING  A  DUTY  OR  IMPOSITION   UPON  THE  BRINGING  IN  OF 


A  commanding  officer  who  should  prohibit  the  entry  into  his  camp 
of  peddlers  of  vegetables  for  the  troops,  permitting  it  only  if  the 
peddlers  pay  him  for  the  privilege,  would  be  guilty  of  this  offense 
whether  any  money  was  actually  paid  or  not. 

PROOF. 

(a)  That  the  accused  officer  was  in  command  of  a  certain  place 
where  troops  of  the  United  States  were  serving,  as  alleged. 

(h)  That  he  laid  a  certain  duty  or  imposition  upon  the  bringing 
into  such  command  of  victuals  or  other  necessaries  of  life  for  the 
use  of  such  troops,  as  alleged. 

(c)  That  such  duty  or  imposition  was  laid  for  his  own  private 
advantage. 


TJie  interest  need  not  be  a  direct  interest,  such  as  that  attaching  to 
a  partnership,  or  part  ownership,  of  the  articles  introduced  for  sale, 
but  may  be  one  of  an  indirect  or  contingent  character,  as,  for  in- 
stance, an  interest  arising  from  an  agreement  or  mutual  understand- 


244  MANUAL  FOR  COURTS-MARTIAL. 

ing  between  the  officer  and  the  owner  of  the  supplies  that  the  former 
shall  receive  a  percentage  on  the  sales,  or  a  commission  on  all  profits 
above  a  certain  sum,  or  some  present  of  money  or  goods  in  return  for 
his  sanction  of  the  speculation  or  promotion  of  the  business.  (Win- 
throp,  p.  870.) 

Thus  a  commanding  officer  commits  this  offense  when  he  agrees 
with  a  peddler  to  exclude  others  in  consideration  of  some  advantage 
to  himself. 

A  commanding  officer  might  become  interested  in  the  sale  of  ar- 
ticles by  the  post  exchange  within  the  meaning  of  this  article. 

PROOF. 

{a)  That  the  accused  officer  was  in  command  of  a  certain  place 
where  troops  of  the  United  States  were  serving,  as  alleged. 

{h)  That  he  became  pecuniarily  interested  in  a  certain  way  in  the 
sale  of  certain  victuals  or  other  necessaries  of  life  to  such  troops, 
as  alleged. 

{c)  That  he  so  became  interested  for  his  own  private  advantage. 

EIGHTY-EIGHTH  ARTICLE. 

438.  Any  person  subject  to  military  law  who  abuses,  intimidates,  does  violence 
to,  or  wrongfully  interferes  with  any  person  bringing  provisions,  supplies,  or 
other  necessaries  to  the  camp,  garrison,  or  quarters  of  the  forces  of  the  United 
States  shall  suffer  such  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  terms  of  the  article. 

This  article  in  no  way  interferes  with  the  lawful  powers  of  a 
military  commander  to  exclude  persons  or  supplies  inimical  to  health 
or  good  order  of  his  command.  The  purpose  of  this  article  is  to 
prevent  the  diminishing  or  cutting  off  of  the  supply  of  necessaries 
brought  in  by  private  persons  through  any  abuse,  intimidation, 
doing  violence  to,  or  wrongfully  interfering  with  such  persons.  The 
prohibition  against  interference,  etc.,  therefore,  applies  not  only 
while  such  persons  are  coming  to  the  camp,  etc.,  but  also  while  they 
remain  and  during  their  return  therefrom. 

The  wrongful  interference  contemplated  would  include  not  only 
any  wrongful  act  not  included  in  the  terms  "  abuse,  etc.,"  which 
prevents,  obstructs,  or  delays  the  movements  of  the  person,  but  any 
wrongful  interference  with  the  supplies  themselves,  such  as  stealing 
or  destroying  them. 

Analysis  and  Proof. 

This  article  applies  to  any  person  subject  to  military  law.  The 
article  defines  a  number  of  offenses  which  may  be  briefly  treated 
under  one  head,  as  follows: 


PUNITIVE  ARTICLES.  245 

I.   INTIMIDATING,    DOING    VIOLENCE    TO,    OR    WRONGFULLY    INTERFERING 
WITH  PERSONS  BRINGING  NECESSARIES. 

PROOF. 

(a)  That  a  certain  person  named  or  described  was  bringing  pro- 
visions, supplies,  or  other  necessaries  to  a  certain  camp,  garrison,  or 
quarters  of  the  forces  of  the  United  States,  as  alleged. 

(h)  That  the  accused  abused,  intimidated,  did  violence  to,  or 
wrongfully  interfered  with  such  person  while  so  engaged  and  in 
the  manner  alleged. 

EIGHTY-NINTH  ARTICLE. 

439.  All  persons  subject  to  military  law  are  to  behave  themselves  orderly  in 
quarters,  garrison,  camp,  and  on  the  march ;  and  any  person  subject  to  military 
law  who  commits  any  waste  or  spoil,  or  willfully  destroys  any  property  what- 
soever (unless  by  order  of  his  commanding  officer),  or  commits  any  kind  of 
depredation  or  riot  shall  be  punished  as  a  court-martial  may  direct.  Any 
commanding  officer  who,  upon  complaint  made  to  him,  refuses  or  omits  to  see 
reparation  made  to  the  party  injured,  in  so  far  as  the  offender's  pay  shall  go 
toward  such  reparation,  as  provided  for  in  article  one  hundred  and  five,  shall 
be  dismissed  from  the  service,  or  otherwise  punished,  as  a  court-martial  may 
direct. 

Definitions  and  Principles. 

See  the  terms  of  the  article  and  the  definitions  under  the  respective 
offenses  as  given  below. 

Analysis  and  Proof. 

This  article  divides  itself  into  two  parts,  one  embracing  all  persons 
subject  to  military  law,  and  the  other  commanding  officers  only. 

The  article  defines  a  number  of  offenses  which  may  be  briefly 
treated  under  the  following  headings: 

I.  Committing  any  waste  or  spoil. 

II.  Willfully  destroying  property. 

III.  Committing  depredation  or  riot. 

IV.  Refusing  or  omitting  to  see  reparation  made. 

I.  COMMITTING   ANY    WASTE   OR    SPOIL. 

The  terms  "  waste  "  or  "  spoil "  as  used  in  this  article  refer  to  such 
acts  of  voluntary  destruction  of  or  permanent  damage  to  real  prop- 
erty as  burning  down  buildings,  tearing  down  fences,  cutting  down 
shade  or  fruit  trees,  and  the  like. 

PROOF. 

(a)  That  the  accused  being  with  a  certain  command  in  quarters, 
camp,  garrison,  or  on  the  march,  committed  waste  or  spoil  on  certain 
property  in  the  manner  alleged. 

(b)  That  such  acts  were  not  ordered  by  his  commanding  officer. 


246  MANUAL  FOR  COURTS-MAETIAL. 

II.   WILLFULLY  DESTROYING  PROPERTY. 

To  be  destroyed  it  is  not  necessary  that  the  property  be  com- 
pletely demolished  or  annihilated.  It  is  sufficient  if  it  is  so  far 
injured  as  to  be  useless  for  the  purpose  for  which  it  was  intended. 

PROOF, 

{a)  That  the  accused  being  with  a  certain  command  in  quarters, 
camp,  garrison,  or  on  the  march,  destroyed  certain  property,  as 
alleged. 

{h)  That  such  destruction  was  willful  and  was  not  ordered  by  his 
commanding  officer. 

in.    COMMITTING    DEPREDATION    OR    RIOT. 

The  terms  "  any  kind  of  depredation  or  riot,"  include  plundering, 
pillaging,  robbing,  and  any  other  willful  damage  to  property  jiot 
included  in  the  preceding  specific  terms  of  the  article.  Injuries  to 
persons  are  not  made  punishable  by  this  article. 

PEOOF. 

(«)  That  the  accused  being  with  a  certain  command  in  quarters, 
camp,  garrison,  or  on  the  march,  committed  certain  acts  of  depreda- 
tion on  certain  property,  or  certain  acts  of  rioting  resulting  in  injury 
to  certain  property,  as  alleged. 

IV.  REFUSING  OR  OMITTING  TO  SEE  REPARATION  MADE. 

Refusing  to  entertain  a  proper  complaint  at  all ;  refusing  or  omit- 
ting to  convene  a  board  for  the  assessment  of  damage;  or  to  act  on 
such  proceedings,  or  to  direct  the  proper  stoppages  are  instances  of 
this  offense. 

PROOF. 

.  (^)  That  the  accused  was  the  commanding  officer  of  a  certain  com- 
mand in  quarters,  garrison,  camp,  or  on  the  march,  as  alleged. 

(h)  That  a  complaint  was  duly  made  to  him  by  a  certain  person 
of  damage  to  or  loss  of  certain  property  occasioned  by  troops  of  the 
accused's  command,  as  alleged. 

{c)  That  the  accused  either  refused  to  see  reparation  made  or 
omitted  in  the  manner  alleged  to  see  reparation  made  to  the  party 
injured  in  so  far  as  the  offender's  pay  would  go  toward  such  repara- 
tion. 

NINETIETH  ARTICLE. 

440.  No  person  subject  to  military  law  shall  use  any  reproachful  ^  provoking 
speeches  or  gestures  to  another ;  and  any  person  subject  to  military  law  who 
offends  against  the  provisions  of  this  article  shall  be  punished  as  a  court- 
marti&l  may  direct. 


PUNITIVE  ARTICLES.  247 

Definitions  and  Principles. 

See  the  terms  of  the  article. 

The  article  is  intended  to  prevent  what  frequently  are  the  first 
steps  toward  quarrels,  fights,  or  serious  offenses. 

Reproachful  speeches  and  gestures  are  such  as  involve  censorious 
comment  on  the  actions  or  opinions  of  another.  Provoking  speeches 
and  gestures  are  such  as  tend  to  exasperate  or  to  arouse  anger  and 
resentment. 

Analysis  and  Proof. 

This  article  applies  to  any  person  subject  to  military  law.  The 
article  defines  offenses  which  may  be  treated  under  one  heading,  as 
follows : 

I.  USING  PROVOKING  SPEECHES  OR  GESTURES. 
PROOF. 

(a)  That  the  accused  used  certain  speeches  or  gestures  to  a  certain 
person,  as  alleged. 

(h)  That  the  speeches  or  gestures  were  reproachful  or  provoking. 

(c)  That  the  person  to  whom  such  speeches  or  gestures  were  ad- 
dressed is  in  one  of  the  classes  of  persons  subject  to  military  law. 

NINETY-FIRST  ARTICLE. 

441.  Any  person  subject  to  military  law  who  fights  or  promotes  or  is  concerned 
in  or  connives  at  fighting  a  duel,  or  who  having  knowledge  of  a  challenge  sent 
or  about  to  be  sent  fails  to  report  the  fact  promptly  to  the  proper  authority 
shall,  if  an  officer,  be  dismissed  from  the  service  or  suffer  such  other  punish- 
ment as  a  court-martial  may  direct ;  and  if  any  other  person  subject  to  military 
law,  shall  suffer  such  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  terms  of  the  article. 

A  duel  is  a  concerted  fight  between  two  persons  with  deadly 

weapons,  the  object  of  which  is  claimed  to  be  the  satisfaction  of 

wounded  honor.     (Wharton,  vol.  2,  p.  555.) 

[Note. — The  offenses  made  punishable  by  this  article  are  of  such  infrequent 
occurrence  that  it  is  considered  inadvisable  to  comment  more  fully  upon  them. 
In  a  case  of  doubt,  works  on  military  law  should  be  consulted.] 

Analysis  and  Proof. 

This  article  applies  to  any  person  subject  to  military  law. 
The  article  embraces  a  number  of  offenses  which  may  be  briefly 
treated  under  the  following  headings : 

I.  Fighting. or  promoting  a  duel. 

II.  Being  concerned  in  or  conniving  at  fighting  a  duel. 

III.  Failing  to  report  knowledge  of  a  challenge. 


248  MANUAL  FOR  COURTS- MARTIAL. 

I.   FIGHTING  OR   PROMOTING  A  DUEL. 

Fighting  or  promoting  a  duel  would  include  such  acts  as  the  send- 
ing, giving,  or  accepting  a  challenge,  or  the  carrying  of  a  challenge 
or  acceptance,  the  arrangement  of  the  preliminaries,  and,  in  general, 
any  act  by  which  a  duel  is  intentionally  furthered,  encouraged,  or 
incited,  whether  the  duel  takes  place  or  not. 

PROOF. 

(a)  That  the  accused  fought  a  duel  with  a  certain  person  as 
alleged,  or  that  he  promoted  a  duel  between  certain  persons  in  the 
manner  alleged. 

II.   BEING   CONCERNED  IN    OR   CONNIVING   AT  FIGHTING  A  DUEL. 

Being  concerned  in  or  conniving  at  fighting  a  duel  would  include 
the  being  present  thereat  in  some  capacity  other  than  a  principal,  as 
in  the  case  of  seconds  and  doctors. 

PROOF. 

(a)  That  the  accused  was  concerned  in  or  connived  at  fighting  a 
certain  duel  in  the  mamier  alleged. 

in.  FAILING  TO  REPORT  KNOWLEDGE  OF  A   CHALLENGE. 

A-  challenge  is  a  written  or  verbal  demand,  request,  or  invitation 
to  another  to  fight  a  duel. 

To  constitute  a  challenge  no  particular  form  is  necessary.  It  is 
enough  if  what  was  sent  or  about  to  be  sent,  considered  in  connec- 
tion with  the  circumstances,  amounts  to  such  a  demand,  request  or 
invitation.  However,  an  effort  to  provoke  a  challenge  or  an  an- 
nouncement of  a  willingness  to  accept  one  is  not  a  challenge. 

As  to  knowledge,  see  matter  under  fifty-fifth  article. 

PROOF. 

(a)  That  the  accused  knew  that  a  certain  challenge  had  been  sent, 
or  was  about  to  be  sent,  as  alleged. 

(h)  That  he  either  did  not  report  the  fact  to  the  proper  authority 
at  all,  or  that  he  unnecessarily  delayed  making  such  report,  as  alleged. 

NINETY-SECOND  ARTICLE. 

442.  Any  person  subject  to  military  law  who  commits  murder  or  rape  shall 
suffer  death  or  imprisonment  for  life,  as  a  court-martial  may  direct;  but  no 
person  shall  be  tried  by  court-martial  for  murder  or  rape  committed  within 
the  geographical  limits  of  the  States  of  the  Union  and  the  District  of  Columbia 
in  time  of  peace. 


PUNITIVE  ARTICLES.  249 

Definitions  and  Principles. 

See  the  terms  of  the  article  and  the  matter  under  the  treatment  of 
the  several  offenses  defined  therein. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law.  See 
article  2. 

The  article  defines  two  offenses,  as  follows : 

I.  Murder. 

II.  Kape. 

I.    MURDER. 

Murder  is  the  unlawful  killing  of  a  human  being  with  malice 
aforethought.     (Federal  Penal  Code,  1910,  sec.  273.) 

"  Unlawfully  "  as  used  in  the  definition  of  murder  means  without 
legal  justification  or  excuse. 

A  homicide  done  in  the  proper  performance  of  a  legal  duty  is 
justifiable.  Thus,  executing  a  person  pursuant  to  a  sentence  of 
death;  killing  in  suppressing  a  mutiny  or  in  preventing  the  escape 
of  a  prisoner  where  no  other  available  means  are  adequate;  killing 
an  enemy  in  battle;  and  killing  to  prevent  the  commission  of  a 
felony  attempted  by  force  or  surprise,  such  as  murder,  burglary,  or 
arson,  are  cases  of  justifiable  homicide. 

The  right  and  duty  of  a  sentinel  over  a  prisoner  in  his  charge  in 
case  of  attempted  escape  is  discussed  in  the  Manual  of  Interior  Guard 
Duty,  1914. 

This  right  and  duty  extends  to  other  members  of  the  guard  whose 
duties  include  the  safe-keeping  of  such  prisoner.  (Digest,  1912, 
p.  683.) 

The  same  principles  apply  to  the  arrest  of  a  soldier  by  ofiicers  or 
soldiers  authorized  to  make  the  particular  arrest. 

A  party  of  soldiers  left  their  caftlp  at  night  in  time  of  war  without 
leave  contrary  to  positive  orders  and  proceeded  to  a  neighboring 
town,  where  they  created  a  disturbance.  Their  commanding  officer 
followed  them,  found  them  in  a  saloon,  and  was  about  to  arrest 
them,  when  they  broke  from  him,  and  knowing  who  he  was  disre- 
garded his  order  to  halt  and  ran  away  from  him.  He  repeated  his 
order,  and  not  being  obeyed  and  having  no  other  means  of  detaining 
them,  fired  upon  them  while  fleeing  with  a  pistol,  and  shot  and  killed 
one  of  them.  Held^  that  he  did  not  use  undue  force  in  endeavoring 
to  maintain  discipline  and  to  arrest  the  offenders  whom  he  was  en- 
deavoring to  return  to  their  stations,  and  that  he  was  not  guilty  of  an 
offense  requiring  punishment,  and  that  his  conduct  under  the  circum- 
stances in  which  he  was  placed  was  justified.     (Digest,  p.  480.) 


^  250  MANUAL  FOR  COURTS-MARTIAL. 

The  general  rule  is  that  "  The  acts  of  a  subordinate  officer  or  sol- 
dier, in  compliance  with  his  supposed  duty,  or  of  superior  orders, 
are  justifiable,  and  he  will  be  protected  against  the  consequences, 
unless  they  are  manifestly  beyond  the  scope  of  his  authority,  and 
such  that  a  man  of  ordinary  sense  and  understanding  would  know  to 
be  illegal,  where  he  acts  in  good  faith  and  without  malice."  (Whar- 
ton on  Homicide,  3d  ed.,  p.  731.) 

The  foregoing  principles  should  not  be  construed  as  conferring 
immunity  on  an  officer  or  soldier  who  willfully  or  through  culpable 
negligence  does  acts  endangering  the  lives  of  innocent  third  parties 
in  the  discharge  of  his  duty  to  prevent  escape  or  effect  an  arrest. 

But  where  a  guard  fired  on  a  prisoner  fleeing  down  a  public  street 
which  was  apparently  clear,  under  circumstances  that  would  have 
justified  the  homicide  of  the  prisoner,  and  thereby  accidentally  killed 
a  young  woman  whom  he  did  not  see  at  the  time  he  shot,  it  was  held 
that  the  homicide  was  excusable. 

A  homicide  which  is  the  result  of  an  accident  or  misadventure  in 
doing  a  lawful  act  in  a  lawful  manner,  or  which  is  done  in  self- 
defense  on  a  sudden  affray,  is  excusable.  Thus,  where  a  lawful 
operation,  performed  with  due  care  and  skill,  causes  the  death  of 
the  patient,  the  homicide  is  excusable.  To  excuse  a  killing  on  the 
ground  of  self-defense  upon  a  sudden  affray,  the  killing  must  have 
been  necessary  to  save  the  person's  life  or  the  lives  of  those  whom  he 
is  bound  to  protect,  or  to  prevent  great  bodily  harm  to  himself  or 
them.  The  danger  must  be  believed  on  reasonable  grounds  to  be 
imminent,  and  no  necessity  will  exist  until  the  person,  if  not  in  his 
own  house,  has  retreated  as  far  as  he  safely  can.  The  person  doing 
the  killing  must  not  have  been  the  aggressor  and  intentionally  pro- 
voked the  difficulty;  but  if  he  withdraws  in  good  faith  and  his 
adversary  follows  and  renews  the  fight,  the  latter  becomes  the 
aggressor. 

The  death  must  take  place  within  a  year  and  a  day  of  the  act  or 
omission  that  caused  it,  and  the  offense  is  committed  at  the  place 
of  such  act  or  omission  although  the  victim  may  have  died  elsewhere. 

Malice  does  not  necessarily  mean  hatred  or  personal  ill  will  to- 
ward the  person  killed,  nor  an  actual  intent  to  take  his  life,  or  even  to 
take  anyone's  life.  The  use  of  the  word  "  aforethought  "  does  not 
mean  that  the  malice  must  exist  for  any  particular  time  before  com- 
mission of  the  act,  or  that  the  intention  to  kill  must  have  previously 
existed.  It  is  sufficient  that  it  exist  at  the  time  the  act  is  committed. 
(Clark,  pp.  187,  188.) 

Malice  aforethought  may  exist  when  the  act  is  unpremeditated.  It 
may  mean  any  one  or  more  of  the  following  states  of  mind  preceding 
or  coexisting  with  the  act  or  omission  by  which  death  is  caused;  (a) 
An  intention  to  cause  the  death  of,  or  grievous  bodily  harm  to,  any 


PUNITIVE   ARTICLES.  251 

person,  whether  such  person  is  the  person  actually  killed  or  not  (ex- 
cept when  death  is  inflicted  in  the  heat  of  a  sudden  passion,  caused 
by  adequate  provocation)  ;  (b)  knowledge  that  the  act  which  causes 
the  death  will  probably  cause  the  death  of,  or  grievous  bodily  harm 
to,  any  person,  whether  such  person  is  the  person  actually  killed 
or  not,  although  such  knowledge  is  accompanied  by  indifference 
whether  death  or  grievous  bodily  harm  is  caused  or  not,  or  by  a 
wish  that  it  may  not  be  caused;  (c)  intent  to  commit  any  felony 
(d)  an  intent  to  oppose^  force  to  an  officer  or  other  person  law- 
fully engaged  in  the  duty  of  arresting,  keeping  in  custody,  or  im- 
prisoning any  person,  or  the  duty  of  keeping  the  peace,  or  dispersing 
an  unlawful  assembly,  provided  the  offender  has  notice  that  the 
person  killed  is  such  officer  or  other  person  so  employed.  (Clark, 
p.  187.) 

"proof. 

(a)  That  the  accused  killed  a  certain  person  named  or  described 
by  certain  means,  as  alleged.    This  involves  proof — 

(1)  That  the  person  alleged  to  have  been  killed  is  dead. 

(2)  That  he  died  in  consequence  of  an  injury  received  by  him. 

(3)  That  such  injury  was  the  result  of  the  act  of  the  accused. 

(4)  That  the  death  took  place  within  a  year  and  a  day  of  such  act. 

(b)  That  such  killing  was  with  malice  aforethought;  that  is,  that 
the  accused  was  in  one  or  more  of  the  states  of  mind  described  above. 

II.    RAPE. 

Rape  is  the  having  of  unlawful  carnal  knowledge  of  a  woman  by 
force  and  without  her  consent. 

As  the  carnal  knowledge  must  be  unlawfully  had,  a  husband  who 
has  carnal  knowledge  of  his  wife  forcibly  where  she  does  not  consent 
is  not  guilty  of  this  offense ;  but  he  is  guilty  when  he  assists  another 
man  in  having  such  carnal  knowledge. 

Any  penetration,  however  slight,  of  the  woman's  genitals  is  suffi- 
cient carnal  knowledge,  whether  emission  occurs  or  not. 

The  offense  may  be  committed  on  a  female  of  any  age,  on  a  man's 
mistress,  or  on  a  common  harlot. 

Force,  actual  or  constructive,  and  a  want  of  consent  are  indis- 
pensable in  rape,  but  the  force  involved  in  the  act  of  penetration  is 
alone  sufficient  force  where  there  is  in  fact  no  consent. 

Where  there  is  actual  consent  to  the  connection,  though  such  con- 
sent be  obtained  by  fraud,  there  is  no  rape;  thus,  where  a  woman 
agrees  to  connection  with  a  physician  on  his  false  representation  that 
the  act  is  part  of  the  required  treatment,  or  where  a  man  successfully 
passes  himself  off  to  a  woman  as  her  husband  and  is  admitted  by  her 
to  connection  as  such,  the  crime  of  rape  is  not  committed. 


252  MANUAL  FOR  COURTS-MARTIAL. 

There  is  no  consent  where  the  woman  is  so  idiotic  as  to  be  in- 
capable of  consenting,  and  a  man  having  connection  w^ith  her  not 
believing  that  he  has  her  consent  is  guilty  of  rape.  So  also  where 
the  woman  is  insensible,  unconscious,  or  asleep,  or  where  her  apparent 
consent  was  extorted  by  violence  to  her  person  or  fear  of  sudden 
violence.  A  child  under  the  age  of  10  is  presumed  incapable  of 
consenting. 

Mere  verbal  protestations  and  a  pretense  of  resistance  do  not  of 
course  show  a  want  of  consent,  but  the  contrary,  and  where  a  woman 
fails  to  take  such  measures  to  frustrate  the  execution  of  the  man's 
design  as  she  is  able  to  and  are  called  for  by  the  circumstances  the 
same  conclusion  may  be  drawn. 

It  has  been  said  of  this  offense  that  "  it  is  true  that  rape  is  a  most 
detestable  crime  *  *  *  ;  but  it  must  be  remembered  that  it  is  an 
accusation  easy  to  be  made,  hard  to  be  proved,  but  harder  to  be  de- 
fended by  the  party  accused,  though  innocent." 


(a)  That  the  accused  had  carnal  knowledge  of  a  certain  female,  as 
alleged ; 

(h)  That  the  act  was  done  by  force  and  without  her  consent;  or 
that  the  female  was  under  the  age  of  10  years. 

NINETY-THIRD  ARTICLE. 

443.  Any  person  subject  to  military  law  who  commits  manslaughter,  mayhem, 
arson,  burglary,  robbery,  larceny,  embezzlement,  perjury,  assault  with  intent  to 
commit  any  felony,  or  assault  with  intent  to  do  bodily  harm,  shall  be  punished 
as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  matter  under  several  offenses  listed  in  the  article. 

Analysis  and  Proof. 

This  article  applies  to  any  person  subject  to  military  law.     The 
article  defines  the  following  offenses,  namely : 
I.  Manslaughter. 
II.  Mayhem. 

III.  Arson. 

IV.  Burglary. 
V.  Larceny. 

VI.  Eobbery. 
VII.  Embezzlement. 
VIII.  Perjury. 

IX.  Assault  with  intent  to  commit  any  felony. 
X.  Assault  with  intent  to  do  bodily  harm. 


PUNITIVE  ARTICLES.  253 

I.    MANSLAUGHTER. 

Manslaughter  is  unlawful  homicide  without  malice  aforethought 
and  is  either  voluntary  or  involuntary. 

Voluntary  manslaughter  is  where  the  act  causing  the  death  is 
committed  in  the  heat  of  sudden  passion  caused  by  provocation. 

Involuntary  manslaughter  is  homicide  unintentionally  caused  in 
the  commission  of  an  unlawful  act  not  amounting  to  a  felony,  nor 
likely  to  endanger  life,  or  by  culpable  negligence  in  performing  a 
lawful  act,  or  in  performing  an  act  required  by  law.  (Clark,  pp.  197, 
204.) 

In  voluntary  manslaughter  the  provocation  must  be  such  as  the 
law  deems  adequate  to  excite  uncontrollable  passion  in  the  mind  of 
a  reasonable  man;  the  act  must  be  committed  under  and  because  of 
the  passion,  and  the  provocation  must  not  be  sought  or  induced  as 
an  excuse  for  killing  or  doing  bodily  harm.     (Clark,  p.  197.) 

The  killing  may  be  manslaughter  only  even  if  intentional,  but 
where  sufficient  cooling  time  elapses  between  the  provocation  and 
the  blow  the  killing  is  murder,  even  if  the  passion  persists.  Instances 
of  adequate  provocation  are:  Assault  and  battery,  inflicting  actual 
bodily  harm  or  a  gross  insult;  an  unlawful  imprisonment;  and  the 
sight  by  a  husband  of  an  act  of  adultery  committed  by  his  wife.  If 
the  person  so  assaulted  or  imprisoned,  or  the  husband  so  situated  at 
once  kills  the  offender  or  offenders  in  a  heat  of  a  sudden  passion 
caused  by  their  acts,  manslaughter  only  has  been  committed. 

Instances  of  inadequate  provocation  are:  Knowledge  by  the 
brother  of  a  female  of  her  seduction;  insulting  or  abusive  words  or 
gestures;  and  injuries  to  property. 

In  involuntary  manslaughter  in  the  commission  of  an  unlawful 
act  the  act  must  be  malum  in  se  and  not  Tnerely  malum^  prohibitum. 
Thus  the  driving  of  an  automobile  in  slight  excess  of  the  speed  limit 
fixed  by  ordinance  is  not  the  kind  of  unlawful  act  contemplated,  but 
voluntarily  engaging  in  an  affray  is  such  an  act.  To  use  an  immod- 
erate amount  of  force  in  suppressing  a  mutiny  is  an  unlawful  act, 
and  if  death  is  caused  thereby  the  one  using  such  force  is  guilty  of 
manslaughter  at  least. 

Instances  of  culpable  negligence  in  performing  a  lawful  act  are: 
Negligently  conducting  target  practice  so  that  the  bullets  go  in  the 
direction  of  an  inhabited  house  within  range;  pointing  a  pistol  in 
fun  at  another  and  pulling  the  trigger,  believing,  but  without  tak- 
ing reasonable  precautions  to  ascertain,  that  it  would  not  be  dis- 
charged; carelessly  leaving  poisons  or  dangerous  drugs  where  they 
may  endanger  life. 

Instances  of  culpable  negligence  in  performing  an  act  required  by 
law  are :  Gross  negligence  or  inattention  by  those  in  charge  of  con- 


254  MAl^UAL   FOR   COURTS-MARTIAL. 

trolling  or  operating  trains  in  the  discharge  of  their  duties ;  culpable 
failure  on  the  part  of  a  parent  to  provide  food,  shelter,  and  medical 
attendance  for  his  helpless  child  where  able  to  do  so. 

Where  there  is  no  legal  duty  to  act  there  can,  of  course,  be  no 
neglect.  Thus  where  a  stranger  makes  no  effort  to  save  a  drowning 
man,  or  a  person  allows  a  mendicant  to  freeze  or  starve  to  death, 
no  crime  is  committed. 

PBOOF. 

(a)  See  item  (a)  under  "Proof  of  murder"  under  ninety-second 
article. 

(h)  The  facts  and  circumstances  of  the  case,  as  alleged,  indicat- 
ing that  the  homicide  amounted  in  law  to  manslaughter. 

n.  MAYHEM. 

Mayhem  at  common  law  is  "  a  hurt  of  any  part  of  a  man's  body 
whereby  he  is  rendered  less  able,  in  fighting,  either  to  defend  himself 
or  to  annoy  his  adversary."    (Bishop,  vol.  2,  p.  579.) 

The  offense  at  common  law  did  not  include  such  injuries  which 
merely  disfigure,  such  as  cutting  off  the  nose  or  ear;  but  did  include 
such  injuries  as  knocking  out  a  front  tooth,  or  castration,  which  were 
supposed  to  weaken  a  man's  fighting  ability. 

The  injury  must  be  willfully  and  maliciously  done,  but  need  not 
be  premeditated.  If  the  hurt  is  done  under  circumstances  which 
would  excuse  or  justify  a  homicide,  no  offense  is  committed. 

A  person  inflicting  such  a  hurt  upon  himself  is  guilty  of  this 
offense,  and  if  another  does  it  at  his  request,  both  are  so  guilty. 


(a)  That  the  accused  inflicted  on  a  certain  person  a  certain  injury 
in  the  manner  alleged. 

(h)  The  facts  and  circumstances  of  tlie  act  showing  such  injury 
to  have  been  inflicted  intentionally  and  maliciously. 

III.  ARSON. 

Arson,  at  the  common  law,  is  the  malicious  burning  of  another's 
house.     (Bishop,  vol.  2,  p.  5.) 

The  house  must  be  the  dwelling  house  of  another,  as  the  offense  is 
against  the  habitation,  not  against  property  as  such. 

The  term  "  dwelling  house  "  includes  outbuildings  that  form  part 
of  the  cluster  of  buildings  used  as  a  residence.  A  mere  scorching 
is  not  a  burning.  To  constitute  a  burning  some  part,  however  small, 
of  the  house  must  be  actually  consumed  or  disintegrated  by  charring 
or  by  a  blaze. 


PUNITIVE   ARTICLES.  255 

A  shop  or  store  is  not  the  subject  of  arson  unless  occupied  as  a 
dwelling.  It  is  not  arson  to  burn  a  house  that  has  never  been  occu- 
pied or  which  has  been  permanently  abandoned;  but  it  is  arson  if 
the  occupant  is  merely  temporarily  absent.  It  is  not  arson  to  burn 
one's  own  dwelling,  whoever  owns  it,  or  even  the  dwelling  of  another 
at  his  request,  and  this  is  so  even  if  there  is  an  intent  to  burn  an  ad- 
joining house  belonging  to  a  third  party ;  but  it  is  arson  if  such  house 
is  actually  burned.  A  house  occupied  by  another  than  the  owner  is 
a  subject  of  arson  by  the  owner. 

The  burning  must  be  willful  and  malicious,  which  excludes  a  burn- 
ing arising  from  negligence  or  mischance,  unless  the  accused  was  en- 
gaged in  the  commission  of  a  felony.  Where  a  man,  who,  in  setting 
fire  to  his  own  house  to  get  the  insurance,  burns  his  neighbor's,  he 
is  guilty  of  arson  in  burning  the  neighbor's  house. 

PROOF. 

(a)  That  the  accused  burned  a  certain  dwelling  house  of  another, 
as  alleged. 

(b)  Facts  and  circumstances  indicating  that  the  act  was  willful 
and  malicious. 

IV.  BURGLARY. 

Burglary  at  common  law  is  the  brealdng  and  entering,  in  the 
night,  of  another's  dwelling  house,  with  intent  to  commit  a  felony 
therein.     (Bishop,  vol.  2,  p.  56.) 

To  constitute  burglary  the  house  mitst  be  a  dwelling  hoiose  of  an- 
other, dwelling  house  including  outhouses  within  the  curtilage  or 
the  common  inclosure;  there  must  be  an  actual  breaking,  or  there 
must  be  the  constructive  breaking  involved  where  an  entry  is  effected 
by  fraud  or  false  pretenses,  by  intimidation,  by  conspiracy  with  a 
servant  or  other  inmate,  or  by  descent  of  a  chimney;  there  must  be 
an  entry ;  the  breaking  and  entry  must  both  be  at  night ;  but  not  nec- 
essarily on  the  same  night,  and  there  must  be  an  intent  to  commit  a 
felony  in  the  house  at  the  time  of  the  breaking  and  of  the  entering, 
but  the  felony  need  not  be  committed.  (Clark  and  Marshal,  pp.  595, 
596.) 

A  store  is  not  a  subject  of  burglary  unless  part  of  or  used  also  as 
a  dwelling  house  as  where  the  occupant  uses  another  part  of  the  same 
building  as  his  dwelling ;  or  where  the  store  is  habitually  slept  in  by 
his  servants  or  members  of  his  family. 

The  house  must  be  in  the  status  of  being  occupied  at  the  time  of 
the  breaking  and  entering.  It  is  not  necessary  to  this  status  that 
any  one  actually  be  in  it;  but  if  the  house  has  never  been  occupied 
at  all  or  has  been  left  without  any  intention  of  returning  to  it  this 


256  MANUAL  FOR  COURTS- MABTIAL. 

status  does  not  exist.  Separate  dwellings  within  the  same  building 
as  a  flat  in  an  apartment  house  or  a  room  in  a  hotel  are  subjects  of 
burglary  by  other  tenants  or  guests,  and  in  general  by  the  owner  of 
the  building  himself.  At  common  law  a  tent  is  not  a  subject  of 
burglary. 

There  must  be  a  breaking,  actual  or  constructive.  Merely  to  enter 
through  a  hole  left  in  the  wall  or  roof  or  through  an  open  window  or 
door,  even  if  left  only  slightly  open  and  pushed  farther  open  by  the 
person  entering,  will  not  constitute  an  actual  breaking ;  but  where 
there  is  any  removal  of  any  part  of  the  house  designed  to  prevent 
entry,  other  than  the  moving  of  a  partly  open  door  or  window,  it  is 
sufficient.  Thus  opening  a  closed  door  or  window  or  other  similar 
fixture,  or  cutting  out  the  glass  of  a  window  or  the  netting  of  the 
screen  is  a  sufficient  breaking.  So  also  the  breaking  of  an  inner  door 
by  one  who  has  entered  the  house  without  breaking,  or  by  a  servant 
lawfully  within  the  house,  but  who  has  no  authority  to  enter  the  par- 
ticular room  is  a  sufficient  breaking,  but  unless  such  a  breaking  is  fol- 
lowed by  an  entry  into  the  particular  room  with  intent  to  commit  a 
felony  therein,  burglary  is  not  committed. 

There  is  a  constructive  breaking  when  the  entry  is  gained  by  a  trick, 
such  as  concealing  oneself  in  a  box ;  or  under  false  pretense,  such  as 
personating  a  gas  or  telephone  inspector;  or  by  intimidating  the 
inmates  through  violence  or  threats  into  opening  the  door ;  or  through 
collusion  with  a  confederate,  an  inmate  of  the  house ;  or  by  descending 
a  chimney,  even  if  only  a  partial  descent  is  made,  and  no  room  is 
entered.  An  entry  must  be  effected  before  the  offense  is  complete; 
but  the  entry  of  any  part  of  the  body,  even  a  finger,  is  sufficient ;  and 
an  insertion  into  the  house  of  an  instrument,  except  merely  to  facili- 
tate further  entrance,  is  a  sufficient  entry. 

Both  the  breaking  and  entry  must  be  in  the  nighttime,  which  at 
common  law  was  the  period  between  sunset  and  sunrise  when  there  is 
not  sufficient  daylight  to  discern  a  man's  fac^,  and  both  must  be  done 
with  the  intent  to  commit  a  felony  in  the  house.  It  is  immaterial 
whether  the  felony  be  committed  or  even  attempted,  and  where  a  fel- 
ony is  actually  intended  it  is  no  defense  that  its  commission  was 
impossible.    The  felony  intended  may  be  a  statutory  felony. 


{a)  That  the  accused  broke  and  entered  a  certain  dwelling  house 
of  a  certain  other  person,  as  specified. 

(h)  That  such  breaking  and  entering  was  done  in  the  nighttime. 

((?)  The  facts  and  circumstances  of  the  case  (for  instance,  the 
actual  commission  of  the  felony)  which  indicate  that  such  breaking 
and  entering  were  done  with  the  intent  to  commit  the  alleged  felony 
therein. 


PUNITIVE   ARTICLES.  257 

V.    LARCENY. 

Larceny  at  comman  law  is  the  taking  and  removing,  by  trespass, 
of  personal  property  which  the  trespasser  knows  to  belong  either 
generally  or  specially  to  another,  with  the  felonious  intent  to  deprive 
him  of  his  ownership  therein.     (Bishop,  vol.  2,  p.  440.) 

In  larceny  there  must  be  a  taking  and  carrying  away.  When 
actual  physical  possession  is  obtained  and  the  property  moved  the 
least  distance,  the  taking  and  carrying  away  is  complete.  Such 
possession  must,  however,  be  complete;  thus,  enticing  a  domestic 
animal  a  short  distance,  or  seizing  property  secured  by  a  chain,  or 
causing  another  to  drop  property  by  knocking  his  hand  is  not  a 
taking  of  such  property.  The  taking  need  not  be  by  the  hands  of 
the  thief.  Thus,  where  one,  having  the  required  intent  to  steal, 
entices  a  horse  into  his  own  stable  without  touching  him,  or  procures 
an  insane  person  to  take  the  goods,  or  procures  a  railroad  company 
to  deliver  another's  trunk  by  changing  the  check  on  it,  he  is  guilty 
of  larceny. 

The  taking  must  be  by  trespass;  that  is,  the  property  must  be 
taken  from  the  actual  or  constructive  possession  of  the  owner  with- 
out his  consent. 

One  who  has  a  lawful  right  to  the  possession  of  the  property  of 
another  can  not  steal  it.  Thus  where  an  article  is  borrowed  or 
hired  in  good  faith  the  bailee  does  not  commit  larceny  if  he  sub- 
sequently during  the  bailment  decides  to  and  does  convert  the  article 
to  his  own  use.  But  if  at  the  time  the  article  is  borrowed,  etc.,  the 
borrower  intends  to  convert  it,  such  a  taking  is  by  trespass  and  his 
act  a  larceny.  And  where  the  possession  of  an  article  is  obtained  by 
fraud,  although  no  intent  to  steal  existed  at  the  time,  a  subsequent 
forming  and  carrying  out  of  such  intent  is  a  larceny,  as  the  taking 
and  keeping  possession  in  such  a  case  is  a  continuing  trespass.  Thus 
where  a  horse  was  hired  by  one  who  really  intended  to  go  farther 
than  he  stated  to  the  owner,  but  who  did  not  intend  to  steal  the  horse, 
it  was  held  that  his  subsequent  conversion  of  the  animal  was  a 
larceny. 

These  rules  apply  to  any  case  of  hailment^  but  do  not  apply  where 
the  owner  intends  to  part  with  the  ownership  of  the  property.  Wliere 
a  carrier  of  goods  in  a  bale,  or  a  person  intrusted  with  a  trunk  for 
safekeeping  breaks  bulk  and  appropriates  part  or  all  of  the  contents, 
he  is  guilty  of  larceny  regardless  of  what  his  intention  was  when  he 
received  the  property. 

The  principle  of  the  rules  as  to  a  bailee  who  accepts  the  possession 
of  property  in  good  faith,  or  who  intends  at  the  time  to  steal  it, 
applies  to  cases  of  property  delivered  by  mistake.  Thus,  where  an 
article  intended  for  one  is  delivered  to  another  by  mistake  the  latter's 

91487°— 17 18 


258  MANUAL  FOE  COURTS- MARTIAL. 

acceptance  of  the  possession,  knowing  of  the  mistake  and  with  the 
required  intent,  is  a  larceny ;  but  if  he  accepts  it  in  ignorance  of  the 
mistake  and  in  good  faith  as  intended  for  him,  his  subsequent  appro- 
priating to  his  own  use  is  not  a  larceny,  as  there  was  no  trespass  in 
the  taking. 

This  same  rule  applies  where  a  person  is  paid  by  mistake  more 
money  than  he  is  entitled  to. 

The  possession  of  goods  may  be  in  one  person  although  the  goods 
themselves  be  in  the  actual  manual  control  of  another,  who  is  said  to 
have  the  custody  of  them.  Thus,  where  the  owner  of  a  coin  gives  it 
to  a  friend  to  examine  on  the  spot,  he  still  retains  the  possession,  and 
if  the  recipient  goes  away  with  the  coin  intending  to  steal  it  he  is 
guilty  of  larceny.  So,  too,  a  guest  at  a  hotel  or  a  private  house  has 
the  bare  custody  of  articles  such  as  those  in  .his  room  or  given  him 
for  use  at  the  table  and  can  commit  a  larceny  of  such  articles. 

Where  a  servant  receives  goods  or  coins  from  his  master  to  use, 
care  for,  or  employ  for  a  specific  purpose  in  his  service,  the  master 
retains  possession  and  the  servant  has  the  custody  only  and  may 
commit  larceny  of  them.  The  fact  of  the  existence  of  the  relation- 
ship of  master  and  servant  does  not  prevent  the  latter  from  being 
a  bailee  of  the  former's  property,  in  which  case  the  rules  as  to  bailees 
apply ;  for  instance,  a  master  might  lend  his  servant  a  horse  to  use 
on  the  latter's  own  business.  Where,  however,  a  servant  receives 
goods  or  coins  from  a  third  person  on  behalf  of  his  master  he  has 
the  possession  of  the  goods  or  coins  and  can  not  commit  a  larceny  of 
them  until  they  have  reached  the  possession  of  his  master,  which 
they  do  when  delivered  into  his  hands  or  deposited  in  the  receptacle 
or  place  provided  for  the  purpose.  Thus,  if  a  clerk  receive  some 
coins  for  his  master  in  the  course  of  business  and  places  in  the  cash 
drawer  or  safe  belonging  to  the  master  he  no  longer  has  the  posses- 
sion of  the  coins  and  his  taking  of  them  with  the  requisite  intent 
would  be  larceny;  but  he  does  not  relinquish  possession  if,  merely 
for  his  own  convenience,  he  uses  the  safe  or  drawer  as  a  hiding  place. 
His  subsequent  taking  of  the  coins  would  not,  therefore,  be  larceny. 
.  This  distinction  between  custody  and  possession  is  of  the  utmost 
importance,  for  it  is  often  very  difficult  to  determine  whether  the 
crime  is  larceny  or  embezzlement,  each  particular  case  depending 
upon  the  peculiar  circumstances.  To  illustrate  the  doctrine :  Where 
a  third  person  hands  a  clerk  money  to  pay  a  bill  which  he  owes  the 
clerk's  employer,  and  the  clerk,  instead  of  putting  the  money  into 
bis  employer's  safe  or  other  proper  place,  puts  it  into  his  own  pocket 
and  appropriates  it,  or  hides  it  on  the  premises  and  afterwards  car- 
ries it  off,  he  does  not  commit  larceny,  for,  as  the  money  has  not 
reached  its  destination,  but  is  merely  in  transit,  the  master  has  not 
obtained  possession,  either  actual  or  constructive.    If,  however,  the 


PUNITIVE   ARTICLES.  259 

clerk  puts  the  moneys  in  the  safe,  it  is  in  his  employer's  constructive 
possession;  and  if  he  takes  it  out  again  and  converts  it,  he  is  guilty 
of  larceny.  If  it  is  not  the  duty  of  the  clerk  to  put  the  money  in 
the  safe,  but  he  is  required  to  keep  it  on  his  person  for  his  master, 
then,  as  soon  as  he  received  the  money,  it  has  reached  its  ultimate 
destination,  and  he  will  be  guilty  if  he  appropriates  it,  instead  of 
holding  it  for  his  master.  If  a  master  gives  his  servant  a  check  to 
take  to  the  bank  and  get  cashed  he  has  mere  custody  of  the  check 
itself,  and  commits  larceny  if  he  appropriates  it;  but  if  he  cashes 
the  check  and  appropriates  the  money  he  commits  embezzlement 
only,  as  the  money  has  never  been  in  the  master's  possession.  (Clark, 
pp.  285,  286.) 

Where  the  owner  of  an  article  delivers  it  to  another,  intending  at 
the  time  an  unconditional  passing  of  the  property  as  well  as  the 
possession,  the  other  can  not  be  guilty  of  larceny,  whatever  the  in- 
ducement employed  by  him.  Thus  where  property  is  obtained  from 
a  dealer  on  the  false  pretense  of  being  sent  for  it  by  a  regular  charge 
customer,  or  where  property  is  bought  on  credit  with  no  intention 
of  paying,  or  where  a  bogus  check  is  given  in  payment  of  goods  or 
in  exchange  for  money,  or  where  money  is  borrowed  on  false  pre- 
tenses with  the  understanding  that  different  coins  or  bills  are  to 
be  returned  there  is  no  larceny. 

In  the  case  of  property  delivered  by  servants  or  agents,  such 
delivery  can  not  go  beyond  the  actual  or  apparent  authority  of  the 
servant  or  agent.  So  where  a  master  sends  his  servant  with  a 
c.  o.  d.  package,  and  the  purchaser  induces  the  servant  to  give  him 
the  package  without  payment  or  pays  with  a  worthless  check,  intend- 
ing to  keep  the  package,  it  is  larceny. 

The  reason  for  the  rule  above  stated  as  to  an  intention  to  pass 
the  property  preventing  the  taking  from  amounting  to  larceny  is 
that  the  consent  of  the  owner  precludes  the  existence  of  an  essential 
element  of  larceny,  viz,  a  trespass.  But  where  the  taking  overlaps 
the  consent  given  it  is  pro  tanto  a  trespass  and  where  the  other  ele- 
ments of  larceny  are  present,  he  who  does  the  taking  is  guilty  of  the 
offense.  Thus  where  one  gets  candy  from  a  slot  machine  by  using 
a  counterfeit  coin,  or  where  a  customer  after  buying  a  cigar  takes 
the  whole  box  of  matches  provided  by  owner  of  the  store  for  the  use 
of  his  customer,  the  act  in  each  case  is  a  trespass,  and  the  offenders 
are  guilty  of  larceny  if  the  other  elements  of  that  offense  are  present. 

Another  application  of  the  rule  that  the  consent  must  be  as  broad 
as  the  taking  is  made  in  cases  where  the  owner's  intent  is  to  pass 
the  property  in  the  goods  only  when  a  condition  is  fulfilled.  Thus 
where  goods  are  handed  to  a  purchaser  on  a  cash  sale  the  title  is 
not  intended  to  pass  until  the  price  is  paid;  and  if  the  person  re- 


260  MANUAL  FOR   COUBTS-MARTIAL. 

ceiving  them  runs  off  with  the  goods  without  paying  for  them  and 
with  the  required  intent,  he  is  guilty  of  larceny. 

This  rule  applies  in  many  analagous  cases.  For  instance  it  is  lar- 
ceny "  for  a  man  to  whom  money  is  handed  to  be  changed  to  run  off 
with  it  or  keep  it,  animo  furandi^  and  refuse  to  give  the  change, 
though  the  intention  may  be  that  he  shall  keep  part  of  it  as  payment 
for  goods  purchased  or  as  a  loan,  for  there  is  no  consent  to  part  with 
the  money  without  receiving  the  change."  (Clark  and  Marshal,  p. 
467.)  In  these  cases  of  conditional  delivery  the  recipient  has  only 
the  bare  custody  and  it  is  therefore  immaterial  w^heth^r  the  intent 
to  steal  existed  at  the  time  of  the  delivery,  or  "was  formed  later. 

The  taking  may  be  from  any  one  having  possession  of  the  prop- 
erty ;  hence,  property  may  be  stolen  from  one  who  himself  has 
stolen  it,  and  the  owner  of  goods  may  steal  them  from  a  bailee  with 
a  special  property  in  them. 

One  retains  the  constructive  possession  of  property  although  it  is 
actually  out  of  his  control  until  some  one  else  takes  possession,  except 
in  the  case  of  abandoned  property.  So  where  a  desk  was  sold  and 
coins  were  afterwards  found  by  the  purchaser  in  a  secret  drawer 
and  taken  by  him,  he  takes  it  from  the  possession  of  the  owner. 
Where  a  person  finds  property  he  has  a  right  to  take  it  and  examine 
it.  If  the  circumstances  give  him  no  clue  to  the  ownership  he  can 
rightfully  appropriate  it  and  this  act  or  a  subsequent  refusal  to  give 
it  up  to  the  owner  will  not  be  a  larceny,  as  there  was  no  trespass  in 
the  taking.  If  the  circumstances  do  give  him  such  a  clue  he  can  right- 
fully assume  possession  for  the  owner  and  a  subsequent  change  of 
intent  and  an  appropriation  of  the  property  would  not  be  a  larceny, 
but  where  he  intends  to  appropriate  it  at  the  time  he  assimies  pos- 
session he  is  guilty  of  larceny,  and  none  the  less  so  if  he  intends 
to  return  it  in  the  event  that  a  reward  is  given. 

In  larceny,  as  in  other  crimes,  the  evil  intent  and  the  act  must 
coexist ;  that  is,  as  stated  in  the  definition  of  larceny,  the  taking  and 
removing  by  trespass  must  be  with  the  particular  intent  described. 

But  where  the  possession  of  property  is  obtained  by  a  trespass  the 
subsequent  retention  of  the  property  without  right  is  a  continuing 
trespass,  and  however  innocent  the  original  intent  of  the  trespasser, 
he  commits  larceny  if  while  wrongfully  retaining  possession  he  has 
the  intent  to  steal.  Thus  where  an  animal  belonging  to  one  person 
becomes  mingled  with  the  herd  of  another  and  is  driven  off  by  mis- 
take, without  the  knowledge  of  either  person,  there  is  a  continuing 
trespass,  and  if  on  discovering  his  mistake  the  owner  of  the  herd 
converts  the  animal  to  his  own  use  he  is  guilty  of  larceny. 

The  felonious  intent  in  larceny  is  that  entertained  by  a  thief ;  i.  e., 
a  fraudulent  intent  to  deprive  the  owner  permanently  of  his  prop- 
erty in  the  goods  or  of  their  value  or  a  part  of  their  value.     Unless 


PUNITIVE  ARTICLES.  261 

such  a  purpose  exist  with  the  taking  and  carrying  away  by  trespass 
there  is  no-larceny. 

Thus  j^rcj^y  is  not  committed  where  the  taking  was  without  any 
intent  at  alll&regards  the  property,  as  in  the  case  of  property  taken 
by  mistake  or  accidentally;  or  where  the  intent  was  to  take  one's 
own  property,  as  in  the  case  of  property  taken  under  a  hond  fide 
claim  of  right,  however  unfounded ;  or  where  the  intent  was  to  take 
another's  property  temporarily  from  his  possession,  as  in  the  case  of 
property  taken  for  a  temporary  use,  or  in  fun,  or  out  of  curiosity,  or 
to  keep  for  him,  or  to  deprive  him  of  the  power  of  using  it.  Thus  if 
one  takes  a  horse  merely  to  enable  him  to  escape  with  stolen  prop- 
erty, or  takes  property  from  a  drunken  friend  in  order  to  prevent 
him  from  losing  it,  or  taking  a  cudgel  out  of  the  owner's  hand  to 
prevent  a  beating  there  is  no  larceny. 

Whether  the  required  intent  exists  where  property  is  taken  to  pawn 
or  hold  for  a  reward  depends  upon  the  circumstances.  Some  cases  of 
taking  property  to  pledge  would  come  within  the  above  rule  as  to 
temporary  use,  as  where  the  intent  is  in  good  faith  to  redeem  and 
return  it ;  but  in  the  absence  of  such  intent  the  taking  is  larceny. 

Where  the  taking  is  with  the  design  of  returning  it  to  the  owner, 
but  in  the  hope  of  obtaining  a  reward,  it  is  not  larceny ;  but  if  the 
purpose  is  to  keep  the  property  until  a  reward  is  offered  it  is.  Taking 
property  with  the  intent  to  sell  it  back  to  the  owner  or  return  it  to 
him  for  some  other  consideration  is,  of  course,  more  indicative  of 
than  inconsistent  with  the  existence  of  the  required  intent.  Thus, 
stealing  a  railroad  ticket  is  none  the  less  stealing  because  it  was  in- 
tended to  be  returned  to  the  railroad  when  made  use  of. 

Once  the  goods  are  taken  and  removed  with  the  felonious  intent 
above  described  the  offense  is  complete  and  is  none  the  less  a  larceny 
because  the  thief  may  have  had  in  mind  a  disposition  of  the  property 
without  benefit  or  advantage  to  himself.  Thus,  an  intent  to  give  it 
to  another  or  to  destroy  it  out  of  revenge,  or  to  prevent  its  use  as  evi- 
dence or  otherwise  against  himself  or  another,  does  not  prevent  the 
felonious  taking  of  another's  property  from  being  larceny. 

In  line  with  this  principle  it  has  been  held  that  a  servant  who 
clandestinely  took  his  master's  oats  for  the  purpose  of  feeding  them 
to  his  master's  horse  was  guilty  of  larceny. 

When  a  larceny  has  been  committed  a  prompt  repentance  by  the 
thief,  followed  by  a  return  of  the  property  or  payment  for  it,  is  no 
defense. 

Under  the  common  law  personal  property  only  can  be  stolen. 
Thus,  where  trees,  fences,  crops,  or  fixtures  are  cut  down  or  severed 
by  a  trespasser  and  immediately  taken  away  by  him,  there  is  no 
larceny.  But  should  the  trespasser,  after  cutting  down  some  trees, 
for  instance,  leave  the  fallen  timber  and  relinquish  his  possession. 


262  MANUAL   FOR   COURTS- MARTIAL. 

the  possession  of  the  owner  attaches  to  the  property  in  its  new  char- 
acter as  personal  property,  and  a  subsequent  taking  by  the  trespasser 
with  intent  to  steal  is  larceny.  ^ 

At  common  law  a  piece  of  paper  may  be  stolen,  thougfins  value  is 
less  than  that  of  the  smallest  coin;  but  if  the  paper  is  so  written 
upon  as  to  be  evidence  of  valid  and  subsisting  agreement,  it  loses  its 
value  as  a  piece  of  paper  and  is  no  longer  a  subject  of  larceny.  Thus, 
a  promissory  note,  a  bank  note  or  a  post-exchange  check  or  other 
writing  evidencing  a  chose  in  action  is  not  a  subject  of  larceny  at 
common  law.  But  section  287,  United  States  Penal  Code,  changes 
this  rule  so  as  to  make  written  instruments  subject  to  theft  and  to  fix 
their  value  as  the  amount  of  money  due  thereon.  Many  of  the  States 
by  statute  have  so  changed  the  rule.    {C.  M,  C.  J/.,  No.  1.) 

PROOF. 

{a)  The  taking  by  the  accused  of  the  property  as  alleged. 

(5)  The  carrying  away  by  the  accused  of  such  property. 

{c)  That  such  property  belonged  to  a  certain  other  person  named 
or  described. 

{d)  That  such  property  was  of  the  value  alleged,  or  of  some  value. 

{e)  The  facts  and  circumstances  of  the  case  indicating  that  the 
taking  and  carrying  away  were  by  trespass  and  with  a  fraudulent 
intent  to  deprive  the  owner  permanently  of  his  property  or  interest 
in  the  goods  or  of  their  value  or  a  part  of  their  value. 

VI.  ROBBERY. 

Eobbery  at  common  law  is  the  taking,  with  intent  to  steal,  of  the 
personal  property  of  another,  from  his  person  or  in  his  presence, 
against  his  will,  by  violence  or  intimidation.     (Clark,  p.  323.) 

The  felonious  and  forcible  taking  from  the  person  of  another 
goods  or  money  to  any  value  by  violence  or  putting  him  in  fear. 
(Bouvier's  Law  Dictionary,  15th  ed.,  vol.  2,  p.  601.) 

Robbery  includes  larceny  and  the  elements  of  that  offense  must 
always  be  present.    See  matter  under  heading  "  V  "  under  this  article. 

Thus  it  is  not  robbery  to  take  one's  own  property,  unless  the  person 
from  whom  it  is  taken  has  a  special  property  in  the  goods  and  the 
right  to  possession ;  nor  is  it  robbery  to  take  property  that  is  honestly 
believed  to  be  one's  own  or  to  take  it  for  a  merely  temj)orary  use. 

It  is  not  necessary  that  the  person  from  whom  the  jDroperty  is  taken 
be  the  actual  owner — it  is  enough  if  he  have  a  possession  or  a  cus- 
tody that  is  good  against  the  taker. 

The  property  must  be  taken  from  the  person  or  in  his  presence; 
but  to  be  in  the  presence  it  is  not  necessary  that  the  owner  be  within 
any  certain  distance  of  his  property;  it  is  enough  if  he  be  near 
enough  to  be  in  control  of  his  property.  Thus  where  some  persons 
entered  a  house  and  forced  the  owner  by  threats  to  disclose  the  hiding 
place  of  valuables  in  an  adjoining  room,  and  then,  leaving  the  owner 


PUNITIVE   ARTICLES.  263 

tied,  went  into  such  room  and  stole  the  valuables  their  offense  was 
held  to  be  robbery. 

The  taking  must  be  against  the  owner's  will  by  means  of  violence 
or  intimidation.  The  violence  or  intimidation  must  precede  or  ac- 
company the  taking.  Thus  where  property  is  taken  by  stealth  from 
the  person  of  its  owner  it  is  not  robbery  in  case  the  thief  overcomes  a 
forcible  effort  to  retake  it;  or  the  owner  is  deterred  by  the  threats 
of  the  thief  from  making  an  attempt  to  retake  it. 

The  violence  must  be  actual  violence  to  the  person,  but  the  amount 
of  violence  used  is  immaterial.  It  is  enough  where  it  overcomes  the 
actual  resistance  of  the  person  robbed,  or  puts  him  in  such  a  posi- 
tion that  he  makes  no  resistance,  or  suffices  to  overcome  the  resistance 
offered  by  a  chain  or  other  fastening  by  which  the  article  is  at- 
tached to  the  person.  Where  an  article  is  merely  snatched  out  of 
another's  hand  or  a  pocket  is  picked  by  stealth  and  no  other  force  is 
used  and  the  owner  is  not  put  in  fear,  the  offense  is  not  robbery,  fiut 
if  in  snatching  the  article  resistance  is  overcome,  there  is  sufficient 
violence,  as  where  a  woman's  earring  is  torn  from  her  ear  or  a  hair 
ornament  entangled  in  her  hair  is  snatched  away.  So,  also,  when 
a  person's  attention  is  diverted  by  being  jostled  by  a  confederate  of 
a  pickpocket,  who  is  thus  enabled  to  steal  the  person's  watch,  it  is  a 
robbery. 

Other  instances  of  robbery  by  violence  are  where  a  man  is 
knocked  insensible  and  his  pockets  rifled,  and  where  an  officer  steals 
property  from  the  person  of  a  prisoner  in  his  charge  after  hand- 
cuffing him  on  the  pretext  of  preventing  his  escape. 

It  is  equally  robbery  whether  the  robber  prevents  resistance  by 
rendering  his  victim  physically  incapable  of  making  any,  or  by  put- 
ting him,  by  threat  or  menaces,  in  such  fear  that  he  is  warranted 
in  making  none.  The  fear  must  be  a  reasonably  well-founded  appre- 
hension of  present  or  future  danger,  and  the  goods  must  be  taken 
while  such  apprehension  exists.  The  danger  apprehended  may  be, 
for  instance,  his  own  death  or  some  bodily  injury  to  him,  or  the  de- 
struction of  his  habitation,  or  a  prosecution  for  sodomy. 

In  the  last  case  it  is  immaterial  whether  the  person  threatened 
with  the  prosecution  is  innocent  or  guilty  of  the  offense.  A  danger 
of  being  prosecuted  for  any  other  offense  is  held  not  to  be  sufficient. 
(Clark  and  Marshall,  p.  865.) 

PEOOF. 

{a)  The  larceny  of  the  property.    See  proof  under  larceny  above. 
(b)  That  such  larceny  was  from  the  person  or  in  the  presence  of 
the  person  alleged  to  have  been  robbed. 

(<?)  That  the  taking  was  by  violence  or  putting  in  fear,  as  alleged. 


264  MANUAL   FOB  COURTS-MAKTIAL. 

VII.    EMBEZZLiEMENT. 

Embezzlement  is  a  fraudulent  appropriation  of  another's  prop*»rty 
by  a  person  to  whom  it  has  been  intrusted  or  into  whose  hand's  it 
has  lawfully  come.  It  differs  from  larceny  in  that  the  original 
taking  of  the  property  was  lawful  or  with  the  consent  of  the  owner, 
while  in  larceny  the  felonious  intent  must  have  existed  at  the  time  of 
the  taking.    (Cyc.,  vol.  15,  p.  488.) 

Embezzlement  is  not  a  common  law  but  a  statutory  offense. 

The  purpose  of  embezzlement  statutes  is  to  meet  the  case  of  a  serv- 
ant, clerk,  bailee,  or  other  person  to  whom  the  possession  of  prop- 
erty is  intrusted  by  or  for  the  owner,  and  who  fraudulently  misap- 
propriates it  to  his  own  use  or  otherwise,  the  circumstances  being 
such  that  the  act  is  not  larceny. 

The  gist  of  the  offense  is  a  breach  of  trust,  and  can  not  be  com- 
mitted unless  some  fiduciary  relationship  exists  between  the  owner 
and  the  person  in  possession  of  the  property  and  unless  such  pos- 
session was  taken  by  virtue  of  such  relationship. 

PBOOF. 

(a)  That  the  accused  was  the  clerk  or  servant  of  a  certain  other 
person  or  stood  in  some  other  fiduciary  relationship  to  that  per- 
son, as  alleged. 

(h)  That  in  such  fiduciary  capacity  the  accused  received  into  his 
possession  certain  money  or  property  of  such  person,  as  alleged. 

(c)  That  he  converted  or  appropriated  to  his  own  use  such  money 
or  property  during  the  existence  of  such  fiduciary  relationship. 

(d)  The  facts  and  circumstances  indicating  that  the  accused  had 
in  so  doing  the  fraudulent  intent  to  deprive  the  owner  permanently 
of  his  property  in  the  goods  or  money,  or  of  their  value  or  a  part 
thereof. 

VIII.    PERJURY. 

Perjury,  at  common  law,  is  the  willful  and  corrupt  giving,  upon 
a  lawful  oath,  or  in  any  form  allowed  by  law  to  be  substituted  for 
an  oath,  in  a  judicial  proceeding  or  course  of  justice,  of  false  tes- 
timony material  to  the  issue  or  matter  of  inquiry.     (Clark,  p.  385.) 

The  false  testimony  must  be  willfully  and  corruptly  given ;  that  is, 
with  a  deliberate  intent  to  testify  falsely. 

It  is  not  perjury  to  testify  by  mistake  to  what  is  believed  to  be  true, 
however  unfounded  the  belief  may  be;  hence,  a  witness  may  contra- 
dict under  oath  testimony  formerly  given  by  him  without  commit- 
ting perjury,  since  he  may  on  each  occasion  have  believed  his  testi- 
mony to  be  true.    On  the  other  hand,  a  witness  may  commit  perjury 


PUNITIVE   ARTICLES.  265 

by  testifying  that  he  knows  a  thing  to  be  true  when  in  fact  he  either 
knows  nothing  about  it  at  all  or  is  not  sure  about  it,  and  this  is  so 
whether  the  thing  be  true  or  false  in  fact.  So,  also,  a  witness  may 
commit  perjury  in  testifying  falsely  as  to  his  belief,  remembrance, 
or  impression,  or  as  to  his  judgment  or  opinion  on  matters  of  fact. 
Thus  where  a  witness  swears  that  he  does  not  remember  certain  facts 
when  in  fact  he  does  he  commits  perjury,  if  the  other  elements  of 
the  offense  are  present.  So,  also,  where  a  witness  testified  that  in 
his  opinion  a  certain  person  was  drunk  when  in  fact  he  entertains 
the  contrary  opinion. 

The  oath  must  be  one  required  or  authorized  by  law  and  must  be 
duly  administered  by  one  authorized  to  administer  it.  If  no  particu- 
lar form  of  oath  is  prescribed  by  statute,  the  form  of  oath  is  imma- 
terial, but  "  there  must  be  in  some  form,  in  the  presence  of  an  officer 
authorized  to  administer  it,  an  unequivocal  and  present  act  by  which 
the  affiant  takes  upon  himself  the  obligation  of  an  oath."  (Clark  and 
Marshal,  p.  863.) 

Thus,  where  a  person  merely  delivers  an  affidavit  signed  by  him 
to  an  officer  authorized  to  administer  the  oath  thereto,  and  without 
anything  more  being  said  or  done  the  officer  signs  the  jurat,  no  oath 
has  been  administered. 

Where  a  form  of  oath  has  been  prescribed  a  literal  following  of 
the  statute  is  not  essential.  It  is  sufficient  if  the  oath  administered 
conforms  in  substance  to  the  statutory  form. 

An  oath  includes  an  affirmation  where  the  latter  is  authorized  in 
lieu  of  an  oath. 

It  is  no  defense  that  the  witness  voluntarily  appeared,  or  that  he 
was  incompetent  as  a  witness,  or  that  his  testimony  was  given  in 
response  to  questions  that  he  could  have  declined  to  answer,  even  if 
he  was  forced  to  answer  it  over  his  claim  of  privilege. 

It  is  a  defense,  however,  if  the  tribunal  or  magistrate  had  no  juris- 
diction of  the  cause  in  which  the  false  testimony  was  given. 

The  false  testimony  must  be  material  to  the  issue  or  matter  of  in- 
quiry, but  the  issue  or  matter  of  inquiry  may  be  a  collateral  one. 

Thus  perjury  may  be  committed  by  giving  material  false  testimony 
with  respect  to  the  credibility  of  a  material  witness,  or  in  an  affidavit 
in  support  of  a  request  for  a  continuance,  as  well  as  by  giving  testi- 
mony with  respect  to  a  fact  from  which  a  legitimate  inference  may 
be  drawn  as  to  the  existence  or  nonexistence  of  a  fact  in  issue.  It  is 
no  defense  that  such  testimony  would  have  been  excluded  if  objected 
to  as  incompetent,  or  that  it  was  not  believed,  or  that  it  did  not  affect 
the  result  in  any  way,  or  that  subsequent  proceedings  rendered  it 
immaterial. 


266  MANUAL  FOR  COUETS-MARTIAU 


PROOF. 


(a)  That  a  certain  judicial  proceeding  or  course  of  justice  was 
pending. 

(h)  That  the  accused  was  sworn  in  such  proceeding. 

(c)  That  such  oath  was  administered  to  the  accused  in  a  matter 
where  an  oath  was  required  or  authorized  by  law,  as  alleged. 

(d)  That  such  oath  was  administered  by  a  person  having  author- 
ity to  do  so. 

(e)  That  upon  such  oath  he  gave  the  testimony  alleged. 

(/)  That  such  testimony  was  false,  and  material  to  the  issue  or 
matter  of  inquiry. 

(g)  The  facts  and  circumstances  indicating  that  such  false  tes- 
timony was  willfully  and  corruptly  given. 

IX.   ASSAtHLT  WITH  INTENT  TO  COMMIT  ANY  FELONY. 

An  assault  with  intent  to  commit  any  felony  is  an  assault  made 
with  a  specific  intent  to  murder,  rape,  rob,  or  to  commit  man- 
slaughter, sodomy,  or  other  common-law  felony. 

An  assault  is  an  attempt  or  offer  with  unlawful  force  or  violence  to 
do  a  corporal  hurt  to  anoiher.    (Clark  and  Marshall,  p.  271.) 

Raising  a  stick  over  another's  head  as  if  to  strike  him,  presenting 
a  firearm  ready  for  use  within  range  of  another,  striking  at  another 
with  a  cane  or  fist,  assuming  a  threatening  attitude  and  hurrying 
toward  another  are  examples  of  assaults. 

Some  overt  act  is  necessary  in  any  assault.  Mere  preparation,  such 
as  unfastening  the  catch  on  a  pistol  holster  in  order  that  the  pistol 
may  be  drawn,  or  picking  up  a  stone  at  a  considerable  distance  from 
another  without  making  any  attempt  or  offer  to  throw  it,  is  not  an 
assault. 

The  force  or  violence  must  be  physical;  mere  words,  however 
threatening,  or  insulting  gestures  are  not  by  themselves  sufficient  to 
constitute  an  assault. 

Furthermore,  in  an  assault  there  must  be  an  intent,  actual  or  ap- 
parent, to  inflict  corporal  hurt  on  another. 

Where  the  circumstances  known  to  the  person  menaced  clearly 
negative  such  intent  there  is  no  assault.  Thus,  where  a  person  accom- 
panies an  apparent  attempt  to  strike  another  by  an  unequivocal  an- 
nouncement in  some  form  of  his  intention  not  to  strike,  there  is  no 
assault.  This  principle  was  applied  in  a  case  where  the  defendant 
raised  his  whip  and  shook  it  at  the  presecutor  within  striking  dis- 
tance saying,  "  If  you  weren't  an  old  man,  I  would  knock  you  down.'* 

Viewed  solely  as  an  attempt  to  commit  a  battery  there  must  be  an 
actual  or  constructive  intent  to  do  a  corporal  hurt  to  another,  and  an 


PUNITIVE   ARTICLES.  267 

act  of  unlawful  violence  or  force  begun  to  be  executed  with  a  view  to 
inflicting  such  hurt.    How  such  purpose  is  defeated  is  immaterial. 

The  following  have  been  held  to  be  assaults :  Eiding  after  a  person 
so  as  to  compel  him  to  seek  safety  in  an  inclosure  to  avoid  a  beating, 
though  the  assailant  was  never  near  enough  to  hit  him;  rushing 
upon  another  in  a  threatening  attitude  although  before  quite  close 
enough  to  strike,  the  person  threatened  strikes  in  self-defense  or 
the  attack  is  frustrated  by  a  third  person. 

It  is  also  an  assault  where  the  person  in  order  to  avert  the  taking 
effect  of  the  unlawful  violence  yields  to  a  demand  of  his  assailant. 
Thus,  where  A,  being  within  striking  distance  of  B,  raises  a  weapon 
for  the  purpose  of  unlawfully  striking  him,  stating  that  he  will 
strike  unless  B  does  a  certain  thing,  and  B  does  that  thing,  thereby 
averting  the  blow,  A  commits  an  assault. 

It  is  not  a  defense  to  a  charge  of  assault  that  for  some  reason 
unknown  to  the  assailant  his  attempt  was  bound  to  fail.  Thus, 
where  a  soldier  loads  his  rifle  with  what  he  believes  to  be  a  good 
cartridge  and,  pointing  it  at  a  person,  pulls  the  trigger,  he  is  guilty 
of  assault  although  the  cartridge  was  so  defective  that  it  could  not 
be  used.  The  same  principle  was  applied  to  a  case  where  a  person 
in  a  house  shoots  through  the  roof  at  a  place  where  he  supposed  a 
policeman  was  concealed,  though  the  policeman  was  at  another  place 
on  the  roof. 

The  intent  need  not  be  to  injure  a  particular  person,  and  mere 
recklessness  may  supply  the  place  of  intent.  Thus,  where  one  strikes 
at  A  believing  him  to  be  B,  he  is  guilty  of  assaulting  A ;  and  where 
one  fires  a  loaded  and  capped  pistol  at  another  recklessly,  and  not 
knowing  or  seeking  to  know  whether  it  is  loaded  or  not,  he  commits 
an  assault. 

To  constitute  an  assault,  however,  it  is  unnecessary  that  there  be 
an  actual  or  constructive  intent  to  hurt  anyone  or  a  believed  ability 
to  inflict  such  hurt. 

If  there  be  to  the  person  set  upon  an  apparent  present  intent  to 
injure,  coupled  with  an  apparent  present  ability  to  do  so,  it  is  suffi- 
cient. 

The  better  opinion,  however,  is  to  the  effect  that  if  a  person  pre- 
sents a  gun  at  another,  or  threatens  him  with  a  stick  or  other 
weapon,  and  thereby  reasonably  puts  him  in  fear  and  causes  him 
to  act  on  the  defensive,  or  to  retreat,  there  is  an  assault,  whether 
there  is  any  actual  intention  to  injure  or  not.  In  a  comparatively 
late  Massachusetts  case  it  was  held  that  a  man  who  pointed  an  un- 
loaded gun  at  another  was  guilty  of  an  assault,  although  he  may 
have  known  that  it  was  not  loaded  and  may  have  had  no  intention 
to  injure.  "  It  is  not  the  secret  intent  of  the  assaulting  party,"  said 
the  court,  "  nor  the  undisclosed  fact  of  his  ability  or  inability  to 


268  MANUAL  FOR  COURTS-MARTIAL. 

commit  a  battery,  that  is  material,  but  what  his  conduct  and  the 
attending  circumstances  denote  at  the  time  to  the  party  assaulted. 
If  to  him  they  indicate  an  attack,  he  is  justified  in  resorting  to  defen- 
sive action.  The  same  rule  applies  to  the  proof  necessary  to  sustain 
a  criminal  complaint  for  an  assault.  It  is  thcDutward  demonstration 
that  constitutes  the  mischief  which  is  punished  as  a  breach  of  the 
peace."     (Clark  and  Marshall,  pp.  277,  278.) 

If  there  be  such  a  demonstration  of  violence,  coupled  with  an  ap- 
parent ability  to  inflict  the  injury,  so  as  to  cause  the  person  at  whom 
it  is  directed  reasonably  to  fear  the  injury  unless  he  retreat  to  secure 
his  safety,  and  under  such  circumstances  he  is  compelled  to  retreat 
to  avoid  an  impending  danger,  the  assault  is  complete,  though  the 
assailant  may  never  have  been  within  the  actual  striking  distance  of 
the  person  assailed.     (Clark  and  Marshall,  p.  281,  note.) 

There  must,  however,  be  an  apparent  present  ability.  To  aim  a 
pistol  at  a  man  at  such  a  distance  that  it  clearly  could  not  injure 
would  not  be  an  assault. 

A  battery  is  an  assault  in  which  force  is  applied,  by  material 
agencies,  to  the  person  of  another,  either  mediately  or  immediately. 
Thus,  it  is  a  battery  to  spit  on  another;  to  push  a  third  person 
against  him;  to  set  a  dog  at  him  which  bites  him;  to  cut  his  dress 
while  he  is  wearing  it,  though  without  touching  or  intending  to 
touch  his  person;  to  shoot  him;  and  to  cause  him  to  take  poison. 
So  it  is  a  battery  for  a  man  to  fondle  against  her  will  a  woman 
not  his  wife.  The  force  may  be  applied  through  conductors  more 
or  less  close.  Thus,  to  strike  the  dress  of  the  person  assailed,  or 
the  horse  on  which  he  is  riding,  or  the  house  in  which  he  resides, 
may  be  as  much  a  battery  as  to  strike  his  face;  and  sending  an 
explosive  machine  by  express  from  New  York  to  San  Francisco 
may  be  as  much  a  battery  as  taking  it  to  San  Francisco  in  person. 
It  is  not,  however,  a  battery  to  lay  hands  on  another  to  attract  his 
attention,  or  in  a  party  falling  to  seize  another  for  support.  Send- 
ing a  missile  into  a  crowd  also  is  a  battery  on  anyone  whom  the 
missile  hits;  and  so  is  the  use,  on  the  part  of  one  who  is  excused 
in  using  force,  of  more  force  than  is  required.  (Wharton,  vol.  1, 
pp.  666,  567.) 

1.  Assault  With  Intent  to  Mubdeb. 

This  is  an  assault  aggravated  by  the  concurrence  of  a  specific  intent 
to  murder ;  in  other  words,  it  is  an  attempt  to  murder. 

As  in  other  attempts  there  must  be  an  overt  act,  beyond  mere  prep- 
aration or  threats,  or  an  attempt  to  make  an  attempt. 

Thus,  it  was  held  not  an  assault  with  intent  to  murder  where  the 
defendant  drew  a  pistol  from  his  hip  pocket,  but  because  of  its  be- 
coming caught  in  the  lining  of  his  coat,  did  not  make  any  actual 


PUNITIVE   ARTICLES.  269 

attempt  to  inflict  an  injury  with  the  pistol  on  the  person  alleged  to 
have  been  assaulted. 

To  constitute  an  assault  with  intent  to  murder  by  firearms  it  is 
not  necessary  that  the  weapon  be  discharged;  and  in  no  case  is  the 
actual  infliction  of  injury  necessary.  Thus,  where  a  man  with  intent 
to  murder  another  deliberately  assaults  him  by  shooting  at  Kim  the 
fact  that  he  misses  does  not  alter  the  character  of  the  offense. 

Where  the  intent  to  murder  exists,  the  fact  that  for  some  reason 
unknown  the  actual  consummation  of  the  murder  is  impossible  by 
the  means  employed  does  not  prevent  the  person  using  them  from 
being  guilty  of  an  assault  with  intent  to  commit  murder  where  the 
means  are  apparently  adapted  to  the  end  in  view.  Thus,  where  a 
soldier  intending  to  murder  another  loads  his  rifle  with  what  he  be- 
lieves to  be  a  good  cartridge  and  aims  and  discharges  his  rifle  at  the 
other,  it  is  no  defense  that  he,  by  accident,  got  hold  of  a  cartridge 
so  defectively  loaded  that  the  bullet  did  not  leave  the  gun. 

In  order  to  constitute  this  offense  the  specific  intent  to  murder 
must  exist,  and  the  facts  must  be  such  that  had  death  been  caused 
by  the  act  the  offense  would  have  been  murder,  but  the  converse  of 
this  latter  proposition  is  not  always  true,  as  a  man  may  be  guilty  of 
murder  without  intending  to  kill.  Thus,  where  a  workman  recklessly 
throws  a  heavy  object  from  the  roof  of  a  building  into  a  street  where 
he  knows  people  are  likely  to  be  passing  and  thereby  kills  a  person, 
he  may  be  guilty  of  murder;  but  where  the  person  is  merely  injured, 
the  offense  of  assault  with  intent  to  commit  murder  is  not  committed. 

To  constitute  this  offense  there  must  be  a  specific  intent  to  murder 
the  person  assaulted  and  this  intent  must  exist  at  the  time  of  the 
assault. 

A  general  felonious  intent  of  a  specific  design  to  commit  another 
felony  is  not  sufficient,  and  where  a  person  is  too  drunk  to  entertain 
the  specific  intent  the  offense  is  not  murder.  But  where  the  accused 
intending  to  murder  A  shoots  at  and  wounds  B,  mistaking  him  for 
A,  he  is  guilty  of  assaulting  B  with  intent  to  murder  him;  so  also 
where  a  man  fires  into  a  group  with  intent  to  murder  some  one  he 
is  guilty  of  an  assault  with  intent  to  murder  each  member  of  the 
group. 

2.  Assault  with  Intent  to  Commit  Manslauqhteb. 

This  offense  differs  from  assault  with  intent  to  murder  in  the 
lack  of  the  elements  of  malice  necessary  to  constitute  the  latter 
crime. 

It  is  an  attempt  to  take  human  life  in  a  sudden  heat  of  passion. 

The  specific  intent  to  kill  is  necessary  and  the  act  must  be  done 
under  such  circumstances  that  had  death  ensued  the  offense  would 
have  been  manslaughter. 


270  MANUAL  FOB  COURTS-MARTIAL. 

What  has  been  said  under  the  head  of  assault  with  intent  to  commit 
murder  applies  to  the  offense  of  assault  with  intent  to  comnait  man- 
slaughter. 

3.   AsSAtTLT  WITH   InTENT  TO  COMMIT  RaPE, 

This  is  an  attempt  to  commit  rape  in  which  the  overt  act  amounts 
to  an  assault  upon  the  woman  intended  to  be  ravished.  Indecent 
advances,  importunities  however  earnest;  mere  threats;  and  actual 
attempts  to  rape  wherein  the  overt  act  is  not  an  assault  do  not  amount 
to  this  offense.  Thus,  where  a  man,  intending  to  rape  a  woman, 
stealthily  concealed  himself  in  her  room  to  await  a  favorable  oppor- 
tunity to  execute  his  design  but  was  discovered  and  fled,  it  was 
held  that  he  was  not  guilty  of  an  assault  with  intent  to  commit  rape. 

No  actual  touching  is  necessary.  Thus  where  a  man  entered  a 
woman's  room  and  got  in  the  bed  where  she  was  and  within  reach  of 
her  person  for  the  purpose  of  ravishing  her  he  commits  the  offense, 
although  he  did  not  touch  the  woman. 

This  offense  may  be  committed  on  a  woman  who  is  insane  or  an 
imbecile,  or  while  she  is  drugged  or  intoxicated,  or  asleep,  provided 
the  offense  would  be  rape  if  the  purpose  was  carried  out.  But  where 
an  attempt  to  have  connection  with  a  woman  capable  of  consenting 
and  whose  consent  thereto  has  been  obtained  by  fraud  there  can  be 
no  assault  with  intent  to  commit  rape. 

Thus  an  attempt  to  have  connection  with  a  woman  who  has  con- 
sented thereto  in  the  belief  that  one  personating  her  husband  is  her 
husband  can  not  be  an  assault  with  intent  to  commit  rape. 

The  intent  to  have  carnal  knowledge  of  the  woman  assaulted  by 
force  and  without  her  consent  must  exist  and  concur  with  the  assault. 
In  other  words,  the  man  must  intend  to  overcome  any  resistance  by 
force,  actual  or  constructive,  and  penetrate  the  woman's  person. 
Any  less  intent  will  not  suffice.  Thus  where  a  man  assaults  a  woman, 
his  purpose  being  to  seduce  her,  the  offense  is  not  committed. 

Once  an  assault  with  intent  to  commit  rape  is  made  it  is  no  defense 
that  the  man  voluntarily  desisted  or  that  the  woman  yields  her  con- 
sent to  the  connection,  so  that  no  rape  is  committed. 

4.  Assault  With  Intent  to  Rob. 

This  is  an  attempt  to  commit  robbery  wherein  the  overt  act  is  an 
assault  and  the  concurrent  intent  is  forcibly  to  take  and  carry  away 
property  of  the  person  assaulted  from  his  person  or  in  his  presence 
by  violence  or  putting  him  in  fear. 

The  accused  can  not  set  up  as  a  defense  that  he  intended  to  take 
only  money  and  that  the  person  he  attempted  to  rob  had  none. 


PUNITIVE   AETICLES.  271 

5.  Assault  With  Intent  to  Commit  Sodomy. 

Sodomy  consists  in  sexual  connection  with  any  brute  animal,  or 
in  sexual  connection,  per  anum,  by  a  man  with  any  man  or  woman. 
(Wharton,  vol.  2,  p.  538.) 

Penetration  of  the  mouth  of  the  person  does  not  constitute  this 
offense. 

Both  parties  are  liable  as  principals  if  eax^h  is  adult  and  consents ; 
but  if  either  be  a  boy  of  tender  age  the  adult  alone  is  liable,  and 
although  the  boy  consent  the  act  is  still  by  force. 

Penetration  alone  is  sufficient. 

An  assault  with  intent  to  commit  this  offense  consists  of  an  assault 
on  a  human  being  with  intent  to  penetrate  his  or  her  person  per  anum. 

That  which  has  been  before  stated,  with  regard  to  the  evidence 
and  manner  of  proof  in  cases  of  rape,  ought  especially  to  be  observed 
upon  a  trial  for  this  heinous  offense.  When  strictly  and  impartially 
proved  the  offense  well  merits  strict  and  impartial  punishment; 
but  it  is  from  its  nature  so  easily  charged  and  the  negative  so 
difficult  to  be  proved  that  the  accusation  ought  clearly  to  be  made 
out.  The  evidence  should  be  plain  and  satisfactory  in  proportion 
as  the  crime  is  detestable. — i  Bla.  Com.,  215.  (Archbold's  Criminal 
Practice  and  Pleading,  7th  ed.,  vol.  2,  pp.  185,  186,  note.) 


(1)  Assault  with  intent  to  murder: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(h)  The  facts  and  circumstances  of  the  case  indicating  the  exist- 
ence at  the  time  of  the  assault  of  the  specific  intent  of  the  accused 
to  kill  such  person,  and  that  the  killing  would  have  been  murder 
had  death  resulted. 

[Note. — Both  the  specific  intent  and  the  malice  may  be  inferred  from  the  de- 
liberate use  of  a  deadly  weapon  in  a  way  calculated  to  cause  death,  or  from 
other  deliberate  acts  of  violence  likely  to  result  in  death  or  great  bodily  harm.] 

(2)  Assault  with  intent  to  commit  manslaughter: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(h)  The  facts  and  circumstances  of  the  case  indicating  the  exist- 
ence at  the  time  of  the  assault  of  the  specific  intent  of  the  accused 
to  kill  such  person  and  that  the  killing  would  have  been  voluntary 
manslaughter  had  death  resulted. 

(3)  Assault  with  intent  to  commit  rape: 

(a)  That  the  accused  assaulted  a  certain  female,  as  specified. 

(h)  The  facts  and  circumstances  of  the  case  indicating  the  exist- 
ence at  the  time  of  the  assault  of  the  intent  of  the  accused  to  pene- 
trate the  person  of  such  female  at  all  events  by  overcoming  any 
resistance  on  her  part  by  actual  or  constructive  force;  and  the  facts 


272  MANUAL  FOR  COUETS-MARTLAL. 

and  circumstances  indicating  that  the  offense  of  rape  would  have 
been  committed  had  the  accused  succeeded  in  carrying*  out  his 
purpose. 

(4)  Assault  with  intent  to  rob: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(h)  The  facts  and  circumstances  of  the  case  indicating  the  exist- 
ence at  the  time  of  the  assault  of  the  intent  on  the  part  of  the  accused 
forcibly  to  steal  property  of  such  person  from  his  person  or  in  his 
presence  by  violence  or  putting  him  in*fear. 

(5)  Assault  with  intent  to  commit  sodomy: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(b)  The  facts  and  circumstances  of  the  case  indicating  the  con- 
current, intent  to  commit  the  offense  on  such  person. 

X.  ASSAULT  WITH  INTENT  TO  DO  BODILY  HARM. 

This  is  an  assault  aggravated  by  the  specific  present  intent  to  do 
bodily  harm  to  the  person  assaulted  by  means  of  the  force  employed. 

It  is  not  necessary  that  any  battery  actually  ensue,  or,  if  bodily 
harm  is  actually  inflicted,  that  it  be  of  the  kind  intended.  Where 
the  accused  acts  in  reckless  disregard  for  the  safety  of  others  it  is 
not  a  defense  that  he  did  not  have  in  mind  the  particular  person 
injured. 

PEOOF. 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(6)  The  facts  and  circumstances  of  the  case  indicating  the  con- 
current intent  thereby  to  do  bodily  harm  to  such  person. 

NINETY-FOURTH  ARTICLE. 

444.  Any  person  subject  to  military  law  who  makes  or  causes  to  be  made  any 
claim  against  the  United  States,  or  any  oflBcer  thereof,  knowing  such  claim  to  be 
false  or  fraudulent ;  or 

[2]  Who  presents  or  causes  to  be  presented  to  any  person  in  the  civil  or 
military  service  thereof,  for  approval  or  payment,  any  claim  against  the  United 
States,  or  any  officer  thereof,  knowing  such  claim  to  be  false  or  fraudulent ;  or 

[3]  Who  enters  into  any  agreement  or  conspiracy  to  defraud  the  United 
States  by  obtaining,  or  aiding  others  to  obtain,  the  allowance  or  payment  of 
any  false  or  fraudulent  claim;  or 

[4]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  ap- 
proval, allowance,  or  payment  of  any  claim  against  the  United  States  or 
against  any  officer  thereof,  makes  or  uses,  or  procures,  or  advises  the  making 
or  use  of,  any  writing  or  other  paper,  knowing  the  same  to  contain  any  false 
or  fraudulent  statements ;  or 

[5]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  ap- 
proval, allowance,  or  payment  of  any  claim  against  the  United  States  or  any 
officer  thereof,  makes,  or  procures,  or  advises  the  making  of,  any  oath  to  any 
fact  or  to  any  writing  or  other  paper  knowing  such  oath  to  be  false:  or 


PUNITIVE  ARTICLES.  273 

[6]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  ap- 
proval, allowance,  or  j^ayment  of  any  claim  against  the  United  States  or  any 
officer  thereof,  forges  or  counterfeits,  or  procures,  or  advises  the  forging  or 
counterfeiting  of  any  signature  upon  any  writing  or  other  paper,  or  uses,  or 
procures,  or  advises  the  use  of  any  such  signature,  knowing  the  same  to  be 
forged  or  counterfeited;  or 

[7]  Who,  having  charge,  possession,  custody,  or  control  of  any  money  or 
other  property  of  the  United  States,  furnished  or  intended  for  the  military 
service  thereof,  knowingly  delivers,  or  causes  to  be  delivered,  to  any  person 
having  authority  to  receive  the  same,  any  amount  thereof  less  than  that  for 
which  he  receives  a  certificate  or  receipt ;  or 

[8]  Who,  being  authorized  to  make  or  deliver  any  paper  certifying  the  re- 
ceipt of  any  property  of  the  United  States  furnished  or  intended  for  the  mili- 
tary service  thereof,  makes  or  delivers  to  any  person  such  writing,  without 
having  full  knowledge  of  the  truth  of  the  statements  therein  contained  and 
with  intent  to  defraud  the  United  States;  or 

[9]  Who  steals,  embezzles,  knowingly  and  willfully  misappropriates,  applies 
to  his  own  use  or  benefit,  or  wrongfully  or  knowingly  sells  or  disposes  of  any 
ordnance,  arms,  equipments,  ammunition,  clothing,  subsistence  stores,  money, 
or  other  property  of  the  United  States  furnished  or  intended  for  the  military 
service  thereof;  or 

[10]  Who  knowingly  purchases  or  receives  in  pledge  for  any  obligation  or 
indebtedness  from  any  soldier,  officer,  or  other  person  who  is  a  part  of  or 
employed  in  said  forces  or  service,  any  ordnance,  arms,  equipment,  ammuni- 
tion, clothing,  subsistence  stores,  or  other  property  of  the  United  States,  such 
soldier,  officer,  or  other  person  not  having  lawful  right  to  sell  or  pledge  the 
same: 

Shall,  on  conviction  thereof,  be  punished  by  fine  or  imprisonment,  or  by 
such  other  punishment  as  a  court-martial  may  adjudge,  or  by  any  or  all  of 
said  penalties.  And  if  any  person,  being  guilty  of  any  of  the  offenses  afore- 
said while  in  the  military  service  of  the  United  States,  receives  his  discharge 
or  is  dismissed  from  the  service,  he  shall  continue  to  be  liable  to  be  arrested 
and  held  for  trial  and  sentence  by  a  court-martial  in  the  same  manner  and  to 
the  same  extent  as  if  he  had  not  received  such  discharge  nor  been  dismissed. 

Definitions  and  Principles. 

See  the  respective  headings  under  which  the  defenses  defined  by 
this  article  are  treated  below. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law.  See 
article  2. 

The  article  embraces  a  large  number  of  offenses  which  may  be 
treated  under  headings,  corresponding  to  the  numbered  paragraphs 
of  the  article,  as  follows : 

I.  Making  or  causing  to  be  made  a  false  or  f raululent  claim. 

II.  Presenting  or  causing  to  be  presented  for  approval  or  payment 
a  false  or  fraudulent  claim. 

91487°— 17 19 


274  MANUAL  FOR  COURTS-MAETIAL. 

III.  Entering  into  an  agreement  or  conspiracy  to  defraud  the 
United  States  through  false  claims. 

IV.  Making,  using,  procuring,  or  advising  the  making  or  use  of  a 
false  writing  or  other  paper  in  connection  with  claims. 

V.  False  oath  in  connection  with  claims. 

VI.  Forgery,  etc.,  of  signature  in  connection  with  claims. 

VII.  Delivering  less  than  amount  called  for  by  receipt. 

VIII.  Making  or  delivering  receipt  without  having  knowledge 
that  the  same  is  true. 

IX.  Embezzlement,  misappropriation,  sale,  etc.,  of  military  prop- 
erty. 

X.  Purchasing  or  receiving  in  pledge  of  military  property. 

I.    MAKING  OR  CAUSING  TO  BE  MADE  A  FALSE  OR  FRAUDULENT  CLAIM. 

Making  a  claim  is  a  distinct  act  from  presenting  it.  A  claim  may 
be  made  in  one  place  and  presented  in  another.  This  section  does  not 
relate  to  personal  claims  against  an  officer  of  the  United  States,  but 
to  claims  against  the  United  States  made  to  such  officer  or  otherwise. 
It  is  not  necessary  that  the  claim  be  allowed  or  paid  nor  that  it  be 
made  by  the  person  to  be  benefited  by  the  allowance  or  payment. 
The  claim  must  be  made  or  caused  to  be  made  with  knowledge  of  its 
fictitious  or  dishonest  character.  This  does  not  include  claims,  how- 
ever groundless  they  may  be,  that  are  honestly  believed  by  the  maker 
to  be  valid,  nor  claims  that  are  merely  made  negligently  or  without 
ordinary  prudence,  but  it  does  include  claims  made  by  a  person  who 
has  the  belief  of  the  false  character  of  the  claim  that  the  ordinarily 
prudent  man  would  have  entertained  imder  the  circumstances.  (See 
also  the  discussion  under  "  II "  of  this  article. ) 

An  instance  of  making  a  false  claim  would  be  where  an  officer 
having  a  claim  respecting  property  lost  in  the  military  service  know- 
ingly includes  articles  that  were  not  in  fact  lost  and  submits  such 
claim  to  his  commanding  officer  for  the  action  of  the  board. 

PEOOF. 

(a)  That  the  accused  made  or  caused  to  be  made  a  certain  claim 
against  the  United  States  as  alleged. 

(h)  That  such  claim  was  false  or  fraudulent  in  the  particulars 
specified. 

(c)  That  when  the  accused  made  the  claim  or  caused  it  to  be  made 
he  knew  that  it  was  false  or  fraudulent  in  such  particulars. 

(d)  The  amount  involved,  as  alleged. 


PUNITIVE  ARTICLES.  275 

II.  PRESENTING  OR  CAUSING  TO  BE  PRESENTED  FOR  APPROVAL  OR  PAYMENT 
A  FALSE  OR  FRAUDULENT  CLAIM. 

See  second  paragraph  of  the  article  and  matter  under  heading  "  I." 

The  claim  must  be  presented  to  some  person  having  authority  to 
approve  or  pay  it.  False  and  fraudulent  claims  include  not  only 
those  containing  some  material  false  statement,  but  also  claims  that 
the  person  presenting  knows  to  have  been  paid,  or  for  some  other 
reason  knows  he  is  not  authorized  to  present  or  receive  money  on. 

Where  an  officer  knows  that  a  certain  duly  assigned  pay  account 
of  his  is  outstanding  and  that  the  assignee  can  collect  on  it  if  he 
chooses  to  do  so,  it  is  no  defense  to  a  charge  against  such  officer  of 
presenting  for  payment  a  second  account  covering  the  same  period 
as  the  assigned  account  that  the  second  account  was  presented  rely- 
ing on  the  assignee's  statement  that  he  would  not  present  the  first. 
But  where  the  accused  has  good  grounds  to  believe  and  actually  does 
believe  when  he  presents  the  second  account  that  the  assigned  account 
had  been  canceled  or  surrendered  by  the  assignee,  his  presentation 
of  the  second  claim  does  not  constitute  this  offense.  A  cancellation 
or  surrender  of  the  first  account  after  the  presentation  of  the  second 
account  is,  of  course,  no  defense  to  the  charge. 

Presenting  to  a  paymaster  a  false  final  statement,  knowing  it  to 
be  false,  is  an  example  of  an  offense  under  this  paragraph. 

PROOF. 

{a)  That  the  accused  presented  or  caused  to  be  presented  for  ap- 
proval or  payment  to  a  certain  person  in  the  civil  or  military  service 
of  the  United  States,  a  certain  claim  against  the  United  States,  as 
alleged. 

(&)  That  such  claim  was  false  or  fraudulent  in  the  particulars 
alleged. 

{c)  That  when  the  accused  presented  the  claim  or  caused  it  to  be 
presented  he  knew  it  was  fictitious  or  dishonest  in  such  particulars. 

(d)  The  amount  involved,  as  alleged. 

in.  ENTERING    INTO    AN    AGREEMENT    OR    CONSPIRACY    TO    DEFRAUD    THE 
UNITED  STATES  THROUGH  FALSE  CLAIMS. 

See  the  third  paragraph  of  this  article. 

A  conspiracy  is  the  corrupt  agreeing  together  of  two  or  more  per- 
sons to  do  by  concerted  action  something  unlawful  either  as  a  means 
or  an  end.    (Bishop,  vol.  2,  p.  98.) 

The  mere  entry  into  a  corrupt  agreement  for  the  purpose  of  de- 
frauding the  United  States  through  any  of  the  means  specified  con- 
stitutes the  offense.    An  example  of  this  offense  is  an  agreement  be- 


276  MANUAL  FOR    COUETS-MAETIAL. 

tween  a  contractor  and  an  officer  to  defraud  the  United  States  by 
means  of  a  padded  voucher  to  be  certified  as  correct  by  the  officer. 

PROOF. 

(a)  That  the  accused  and  one  or  more  other  persons  named  or 
described  entered  into  an  agreement. 

(h)  That  the  object  of  the  agreement  was  to  defraud  the  United 
States. 

(c)  That  the  means  by  which  the  fraud  was  to  be  effected  were 
to  obtain  or  assist  certain  other  persons  to  obtain  the  allowance  or 
payment  of  a  certain  false  or  fraudulent  claim,  as  specified. 

(d)  The  amount  involved,  as  alleged. 

IV.    MAKING,  USING,  PROCURING,  OR  ADVISING  THE  MAKING  OR  USE  OF  A 
FALSE  WRITING  OR  OTHER  PAPER  IN  CONNECTION  WITH  CLAIMS. 

See  the  fourth  paragraph  of  the  article,  and  matter  under  head- 
ings "  I "  and  "  II." 

It  is  not  necessary  to  the  offense  of  making  a  writing  knowing  it 
to  contain  false  or  fraudulent  statements  that  such  writing  be  used 
or  attempted  to  be  used,  or  that  the  claim  in  support  of  which  it  was 
made  be  presented  for  approval,  allowance,  or  payment.  The  false 
or  fraudulent  statement  should,  however,  be  material. 

In  the  offense  of  procuring  the  making  or  use  of  the  writing  or 
other  paper,  the  paper  must  be  made  or  used ;  but  in  the  offense  of 
advising  such  acts  the  making  or  use  of  the  paper  is  not  necessary. 
Examples  of  offenses  under  this  paragraph  are:  Willfully  inducing 
another  to  make  to  the  United  States  a  lease  of  premises  containing 
a  false  and  fraudulent  statement  with  a  view  of  obtaining  the  allow- 
ance of  a  false  claim  for  rent  against  the  United  States ;  falsification 
by  a  soldier  of  an  entry  in  the  company  clothing  book  for  the  pur- 
pose described  in  this  paragraph  of  the  article;  and  the  making  by 
an  officer  in  his  pay  account  of  false  and  fraudulent  statements  with 
a  view  to  securing  the  payment  of  such  account. 

PEOOF. 

(a)  That  the  accused  made  or  used  or  procured  or  advised  the 
making  or  use  of  a  certain  writing  or  other  paper,  as  alleged. 

( h )  That  certain  statements  in  such  writing  or  other  papers  were 
false  or  fraudulent,  as  alleged. 

(c)  That  the  accused  knew  this. 

(d)  The  facts  and  circumstances  indicating  that  the  act  of  the  ac- 
cused was  for  the  purpose  of  obtaining  or  aiding  certain  others  to 
obtain  the  approval,  allowance,  or  payment  of  a  certain  claim  or 
claims  against  the  United  States,  as  specified. 

(e)  The  amount  involved,  as  alleged. 


PUNITIVE  ARTICLES.  277 

V.  FALSE  OATH  IN  CONNECTION  WITH  CLAIMS. 

See  the  fifth  paragraph  of  the  article  and  matter  under  headings 
"I,"  "II,"  and  "IV." 

PEOOF. 

(a)  That  the  accused  made  or  procured  or  advised  the  making  of 
an  oath  to  a  certain  fact  or  to  a  certain  writing  or  other  paper,  as 
alleged. 

(b)  That  such  oath  was  false,  as  alleged. 

(c)  That  the  accused  knew  it  was  false. 

(d)  The  facts  and  circumstances  of  the  case  indicating  that  the 
act  was  for  the  purpose  of  obtaining  or  aiding  certain  others  to  ob- 
tain the  approval,  allowance,  or  payment  of  a  certain  claim  or  claims 
against  the  United  States,  as  alleged. 

VI.  FORGERY,  ETC.,  OF  SIGNATURE  IN  CONNECTION  WITH  CLAIMS. 

See  the  sixth  paragraph  of  the  article  and  matter  under  headings 
«*  I "  and  "  II  "  above. 

The  term  "  forges  or  counterfeits  "  includes  any  fraudulent  making 
of  another's  signature,  whether  an  attempt  is  made  to  imitate  the 
handwriting  or  not. 

PROOF. 

(a)  That  the  accused  forged  or  counterfeited  the  signature  of  a 
certain  person  on  a  certain  writing  or  other  paper  or  that  he  pro- 
cured or  advised  the  act  as  specified ;  or  that  he  used  the  forged  or 
counterfeited  signature  of  a  certain  person  or  procured  or  advised  its 
use,  knowing  such  signature  to  be  forged  or  counterfeited,  as  alleged. 

(h)  The  facts  and  circumstances  of  the  case  indicating  that  his 
act  was  for  the  purpose  of  obtaining  or  aiding  certain  others  to 
obtain  the  approval,  allowance,  or  payment  of  a  certain  claim  or 
claims  against  the  United  States  as  alleged. 

VII.  DELIVERING  LESS   THAN   AMOUNT   CALLED  FOR  BY  RECEIPT. 

See  the  seventh  paragraph  of  the  article. 

It  is  immaterial  in  this  offense  by  what  means,  whether  by  deceit, 
collusion,  or  otherwise,  the  accused  effected  the  transaction,  or  what 
his  purpose  was  in  so  doing. 

Instances  of  this  offense  are : 

A  contractor  gave  a  receipt  for  a  greater  amount  than  was  due 
him  from  the  United  States.  Thereupon  the  disbursing  officer  gave 
him  the  full  amount  called  for  by  the  receipt,  but  received  back  from 
the  contractor  the  excess  over  the  amount  actually  due. 


278  MANUAL  FOB  COURTS-MARTIAL. 

A  disbursing  officer,  having  delivered  to  a  creditor  of  tke  United 
States  less  money  than  was  actually  due,  received  a  receipt  signed 
in  blank  by  the  creditor,  which  he  afterwards  completed  by  writing 
the  true  amount  due. 

PBOOF. 

(a)  That  the  accused  had  charge,  possession,  custody,  or  control 
of  certain  money  or  property  of  the  United  States  furnished  or 
intended  for  the  military  service  thereof,  as  alleged. 

(b)  That  he  obtained  a  receipt  for  a  certain  amount  or  quantity 
of  such  money  or  property,  as  alleged. 

(c)  That  for  such  receipt  he  knowingly  delivered,  or  caused  to 
be  delivered,  to  a  certain  person  having  authority  to  receive  it  an 
amount  or  quantity  of  such  money  or  property  less  than  the  amount 
or  quantity  thereof  specified  in  such  receipt. 

(d)  The  value  of  the  undelivered  money  or  property,  as  alleged. 

VIII.  MAKING    OR    DELIVERING    RECEIPT    WITHOUT     HAVING    KNOWLEDGE 
THAT  THE  SAME  IS  TRUE. 

See  the  eighth  paragraph  of  the  article. 

The  following  is  an  instance  of  an  offense  under  this  paragraph : 
An  officer,  being  in  collusion  with  a  contractor,  knowingly  received 
from  him  an  amount  of  supplies  intended  for  the  military  service 
less  than  the  amount  shown  on  the  receipt  for  the  supplies,  which 
receipt  was  certified  to  by  the  officer  and  delivered  to  the  contractor 
with  the  intent  to  defraud  the  United  States. 

PROOF. 

(a)  That  the  accused  was  authorized  to  make  or  deliver  a  certifi- 
cate of  the  receipt  from  a  certain  person  of  certain  property  of  the 
United  States  furnished  or  intended  for  the  military  service  thereof, 
as  alleged. 

(h)  That  he  made  or  delivered  to  such  person  such  certificate,  as 
alleged. 

(c)  That  such  certificate  was  made  or  delivered  without  the  ac- 
cused having  full  knowledge  of  the  truth  of  a  certain  material  state- 
ment or  statements  therein. 

(d)  The  facts  and  circumstances  indicating  that  his  act  was  done 
with  intent  to  defraud  the  United  States. 

(e)  The  amount  involved,  as  alleged. 

IX.    EMBEZZLEMENT,    MISAPPROPRIATION,    SALE,    ETC.,    OF    MILITARY 

PROPERTY. 

For  definitions  and  principles  respecting  larceny  and  erribezzle- 
ment^  see  headings  "  V  "  and  "  VII "  under  the  ninety-third  article. 


PUNITIVE  ARTICLES.  279 

Misappropriating  is  devoting  to  any  unauthorized  purpose.  The 
misapplication  meant  is  where  such  purpose  is  for  the  party's  own 
use  or  benefit. 

For  the  definition  of  "  disposes  of,"  see  heading  "  I "  under  the 
eightieth  article. 

The  larceny^  erribezzlement^  etc.,  must  be  of  the  particular  kind  of 
property  mentioned  in  the  article.  Post  exchange  and  company 
funds  and  money  appropriated  for  other  than  the  military  service 
do  not  come  within  the  description  "money  of  the  United  States 
furnished  or  intended  for  the  military  service  thereof."  The  term 
"embezzlement"  as  used  in  this  article  does  not  include  acts  or 
omissions  not  within  the  definition  of  embezzlement,  but  which  are 
expressly  declared  by  statute  to  be  embezzlements.  Such  statutory 
embezzlements  are  chargeable,  however,  under  the  ninety-sixth  article. 

The  misappropriation  of  the  property  or  money  need  not  be  for 
the  benefit  of  the  accused;  the  words  "to  his  own  use  and  benefit" 
qualifies  the  words  "  applies  only." 

Instances  of  misappropriation  are: 

An  officer  of  the  Quartermaster's  Department  used  teams,  tools, 
and  other  public  property  in  his  possession  as  such  officer  in  erecting 
buildings,  etc.,  for  the  benefit  of  an  association  composed  mainly  of 
civilians,  of  which  he  was  a  member. 

An  officer  of  the  Quartermaster's  Department  loaned  public  prop- 
erty (corn)  to  a  contractor  for  the  purpose  of  enabling  him  to  fill 
a  contract  made  with  the  United  States  through  another  officer. 

An  instance  of  misapplication  is  the  temporary  use  by  a  quarter- 
master of  Government  horses  in  his  charge  to  draw  his  private  car- 
riage on  nonpublic  business. 

PBOOF. 

In  larceny  and  embezzlement : 

{a)  See  proof  under  headings  "  V  "  and  "  VII "  under  the  ninety - 
third  article. 

{h)  That  the  property  belonged  to  the  United  States  and  that  it 
was  furnished  or  intended  for  the  military  service  thereof. 

In  misappropriation  and  misapplication: 

{a)  That  the  accused  misappropriated  or  applied  to  his  own  use 
certain  property  in  the  manner  alleged. 

(&)  That  such  property  belonged  to  the  United  States  and  that 
it  was  furnished  or  intended  for  the  military  service  thereof. 

{g)  The  facts  and  circumstances  of  the  case  indicating  that  the 
act  of  the  accused  was  willfully  and  knowingly  done. 

{d)  The  value  of  the  property,  as  specified. 


280  MANUAL   FOR   COUETS-MARTIAL. 

In  wrongful  sale  or  disposition: 

(a)  That  the  accused  sold  or  in  a  certain  manner  disposed  of  cer- 
tain property,  as  specified. 

(b)  That  such  property  belonged  to  the  United  States  and  that  it 
was  furnished  or  intended  for  the  military  service  thereof. 

(c)  The  facts  and  circumstances  indicating  that  the  act  was  know- 
ingly or  wrongfully  done. 

(d)  The  value  of  the  property,  as  specified. 

X.  PURCHASING  OR  RECEIS^ING  IN  PUEDGE  OF  MILITARY  PROPERTY. 

See  the  tenth  paragraph  of  the  article  and  matter  under  fifty- 
fifth  article. 

To  constitute  this  offense  the  accused  must  know  not  only  that  the 
person  selling  or  pawning  the  property  was  in  one  of  the  specified 
classes  but  that  the  property  was  the  property  of  the  United  States. 
As  to  "  knowingly "  see  "  Definitions  and  principles "  under  fifty- 
fifth  article. 

PEOOP. 

(a)  That  the  accused  purchased,  or  received  in  pledge,  for  a  cer- 
tain obligation  or  indebtedness  certain  military  property  of  the 
United  States,  as  alleged,  knowing  it  to  be  such  property. 

(h)  That  such  property  was  purchased  or  so  received  in  pledge 
from  a  certain  soldier,  officer,  or  other  person  who  was  a  part  of  or 
employed  in  the  military  service  of  the  United  States,  as  alleged,  and 
that  the  accused  knew  the  person  selling  or  pledging  the  property  to 
be  such  soldier,  officer,  or  other  person. 

(g)  That  such  soldier,  officer,  or  other  person  had  not  the  lawful 
right  to  sell  or  pledge  such  property. 

(d)  The  value  of  the  property,  as  alleged. 

NINETY-FIFTH  ARTICLE. 

445.  Any  officer  or  cadet  who  is  convicted  of  conduct  unbecoming  an  officer  and 
a  gentleman  shall  be  dismissed  from  the  service. 

Definitions  and  Principles. 

The  conduct  contemplated  is  action  or  behavior  in  an  official 
capacity  which,  in  dishonoring  or  disgracing  the  individual  as  an 
officer,  seriously  compromises  his  character  and  standing  as  a  gentle- 
man, or  action  or  behavior  in  an  unofficial  or  private  capacity  which, 
in  dishonoring  or  disgracing  the  individual  personally  as  a  gentle- 
man, seriously  compromises  his  position  as  an  officer  and  exhibits 
him  as  morally  unworthy  to  remain  a  member  of  the  honorable  pro- 
fession of  arms.     (Winthrop,  p.  1106.) 

There  are  certain  moral  attributes  common  to  the  ideal  officer  and 
the  perfect  gentleman,  a  lack  of  which  is  indicated  by  acts  of  dis- 


PUNITIVE  AETICLEE,  281 

honesty  or  unfair  dealing ;  of  indecency  or  indecorum ;  of  lawlessness, 
injustice,  or  cruelty. 

Not  every  one  is  or  can  be  expected  to  meet  ideal  standards  or  to 
possess  the  attributes  in  the  exact  degree  demanded  by  the  standards 
of  his  own  time ;  but  there  is  a  limit  of  tolerance  below  which  the  in- 
dividual standards  in  these  respects  of  an  officer  or  cadet  can  not  fall 
without  his  being  morally  unfit  to  be  an  officer  or  cadet  or  to  be  con- 
sidered a  gentleman. 

This  article  contemplates  such  conduct  by  an  officer  or  cadet  which, 
.taking  all  the  circumstances  into  consideration,  satisfactorily  shows 
such  moral  unfitness. 

This  article  includes  acts  made  punishable  by  any  other  article  of 
war,  provided  such  acts  amount  to  conduct  unbecoming  an  officei  and 
a  gentleman;  thus,  an  officer  who  embezzles  military  property  vio- 
lates both  this  and  the  preceding  article. 

Instances  of  violation  of  this  article  are : 

Knowingly  making  a  false  official  statement ;  dishonorable  neglect 
to  pay  debts;  opening  and  reading  another's  letters;  giving  a  check 
on  a  bank  where  there  were  no  funds  to  meet  it,  and  without  intend- 
ing that  there  should  be;  using  insulting  or  defamatory  language  to 
another  officer  in  his  presence,  or  about  him  to  other  military  per- 
sons; being  grossly  drunk  and  conspicuously  disorderly  in  a  public 
place;  public  association  with  notorious  prostitutes;  cruel  treatment 
of  soldiers;  committing  or  attempting  to  commit  a  crime  involving 
moral  turpitude ;  failing  without  a  good  cause  to  support  his  family. 

For  other  instances,  see  Digest,  pages  140-143,  and  Winthrop, 
pages  1107-1115. 

Analysis  and  Proof. 

This  article  applies  to  officers  and  cadets  only. 
The  article  defines  one  offense,  viz : 

I.  CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN. 

PROOF. 

(a)  That  the  accused  did  or  omitted  to  do  the  acts  as  alleged. 
(h)  The  circumstances,  intent,  motive,  etc.,  as  specified. 

NINETY-SIXTH  ARTICLE. 

446.  Though  not  mentioned  in  these  articles,  all  disorders  and  neglects  to  the 
prejudice  of  good  order  and  military  discipline,  all  conduct  of  a  nature  to 
bring  discredit  upon  the  military  service,  and  all  crimes  or  offenses  not  capital, 


282  MANUAL  FOR  COURTS-MARTIAL. 

of  which  persons  subject  to  military  law  may  be  guilty,  shall  be  taken  cogni- 
zance of  by  a  general  or  special  or  summary  court-martial,  according  to  the 
nature  and  degree  of  the  offense,  and  punished  at  the  discretion  of  such  court. 

Definitions  and  Principles. 

See  matter  under  the  respective  headings  under  which  the  offenses 
are  treated. 

Analysis  AND  Proof. 

The  article  applies  to  any  person  subject  to  military  law.  See 
article  2.  The  article  embraces  offenses  falling  within  the  classes 
described  therein,  and  not  mentioned  in  the  other  punitive  articles. 
The  offenses  may  be  treated  under  the  following  headings : 

I.  Disorders  and  neglects  to  the  prejudice  of  good  order  and  mili- 
tary discipline. 

II.  Conduct  of  a  nature  to  bring  discredit  upon  the  military 
service. 

III.  Crimes  or  offenses  not  capital. 

I.  DISORDERS  AND  NEGLECTS  TO  THE  PREJUDICTI  OP  GMDOD  ORDER  AND  MILI- 
TARY DISCIPLINE. 

The  disorders  and  neglects  include  all  acts  or  omissions  to  the 
prejudice  of  good  order  and  military  discipline  not  made  punishable 
by  any  of  the  preceding  articles. 

By  the  term  "  to  the  prejudice,"  etc.,  is  to  be  understood  directly 
prejudicial,  not  indirectly  or  remotely  merely.  An  irregular  or 
improper  act  on  the  part  of  an  officer  or  soldier  can  scarcely  be  con- 
ceived which  may  not  be  regarded  as  in  some  indirect  or  remote 
sense  prejudicing  military  discipline;  but  it  is  hardly  to  be  sup- 
posed that  the  article  contemplated  such  distant  effects,  and  the 
same  is,  therefore,  deemed  properly  to  be  confined  to  cases  in  which 
the  prejudice  is  reasonably  direct  and  folpahle.     ( Winthrop,  p.  1123.) 

Instances  of  such  disorders  and  neglects  in  the  case  of  officers  are : 
Disobedience  of  standing  orders,  or  of  the  orders  of  an  officer  when 
the  offense  is  not  chargeable  under  a  specific  article ;  allowing  a  sol- 
dier to  go  on  duty  knowing  him  to  be  drunk ;  rendering  himself  unfit 
for  duty  by  excessive  use  of  intoxicants ;  drunkenness. 

Instances  of  such  disorders  and  neglects  in  the  cases  of  enlisted 
men  are :  Failing  to  appear  on  duty  with  a  proper  uniform ;  appear- 
ing with  dirty  clothing ;  malingering ;  abusing  public  animals ;  refus- 
ing to  submit  to  treatment  necessary  to  render  him  fit  for  duty ;  re- 
fusing to  submit  to  a  necessary  and  proper  operation  not  endangering 
life  (see  G.  O.  43,  W.  D.,  1906);  careless  discharge  of  firearms; 
personating  an  officer ;  making  false  statements  to  an  officer  in  regard 
to  matters  of  duty. 


PUNITIVE  ARTICLES.  283 

PBOOF. 

(a)  That  the  accused  did  or  failed  to  do  the  acts  alleged. 

(b)  The  circumstances,  intent,  etc.,  as  specified. 

n.  CONDUCT  OF  A   NATURE  TO  BRING  DISCREDIT  UPON   THE  MILITARY 

SERVICE. 

"  Discredit,"  as  here  used,  means  to  injure  the  reputation  of. 

The  principal  object  of  including  this  phrase  in  the  general  article 
was  to  make  military  offenses  those  acts  or  omissions  of  retired  sol- 
diers which  were  not  elsewhere  made  punishable  by  the  Articles  of 
War  but  which  are  of  a  nature  to  bring  discredit  on  the  service,  such 
as  a  failure  to  pay  debts. 

There  is,  however,  a  limited  field  for  the  application  of  this  part 
of  the  general  article  to  soldiers  on  the  active  list  in  cases  where 
their  discreditable  conduct  is  not  made  punishable  by  any  specific 
article  or  by  the  other  parts  of  the  general  article. 

PBOOF. 

(a)  That  the  accused  did  or  failed  to  do  the  acts  alleged. 

(b)  The  circumstances,  intent,  etc.,  as  specified. 

III.    CRIMES  OR  OFFENSES  NOT  CAPITAL. 

The  crimes  referred  to  in  A.  W.  96  manifestly  embrace  those  not 
capital  committed  in  violation  of  public  law  as  enforced  by  the  civil 
power.    (U.  S.  V.  Grafton,  206  U.  S.,  348.) 

All  crimes  or  offenses  wherever  committed  that  are  not  made 
punishable  by  death  are  included,  except  such  as  are  specifically  in- 
cluded in  some  other  article  and  (in  view  of  the  ninety-second  ar- 
ticle) except  murder  or  rape  committed  in  time  of  peace  within 
the  geographical  limits  of  the  States  of  the  Union  and  the  District 
of  Columbia. 

Within  this  description  would  be  a  noncapital  crime  which,  al- 
though designated  by  the  laws  of  the  jurisdiction  where  committed 
with  one  of  the  names  used,  for  instance,  in  the  ninety-third  article, 
is  not  within  the  common-law  definition  of  the  offense. 

Thus  section  90  of  the  Federal  Penal  Code  of  1910  provides  that 
a  failure  by  an  officer  to  render  accounts  for  public  money  received 
by  him  unless  authorized  to  retain  it  as  salary,  pay,  or  emolument 
is  an  embezzlement  of  such  funds.  Such  an  embezzlement  not  being 
within  the  definition  of  embezzlement  as  the  term  is  used  in  the 
ninety-third  and  ninety-fourth  articles  would  be  chargeable  under 
the  general  article. 

The  elements  of  some  of  the  more  common  crimes  that  are  charge- 
able under  this  article  will  now  be  discussed. 


284  MANUAL   FOE   COUETS-MAETIAL. 

(1)  Assault. 

(2)  Assault  and  battery. — See  matter  under  heading  "IX"  under 
ninety- third  article. 

A  battery  is  any  unlawful  touching  or  injury,  however  slight,  to 
the  person  of  another  directly  or  indirectly  done  in  an  angry,  re- 
vengeful, rude  or  insolent  manner.  Throwing  water  or  spitting  in 
a  person's  face  is  a  battery.  So,  merely  taking  hold  of  another's 
clothing,  or  pushing  another  against  him,  or  striking  a  horse  on 
which  he  is  riding  causing  him  to  be  thrown ;  striking  his  cane  while 
in  his  hand,  is  a  battery  when  done  unlawfully  and  in  the  manner 
described. 

If  the  injury  is  accidentally  inflicted  in  doing  a  lawful  act  without 
culpable  negligence  the  offense  is  not  committed ;  but  where  personal 
injury  results  from  the  reckless  doing  of  an  act  likely  to  result  in 
such  injury,  the  offense  is  committed. 

It  is  no  defense  that  the  injury  took  place  on  a  person  for  which 
it  was  not  intended,  or  that  the  injury  was  not  the  immediate  result 
of  the  defendant's  acts.  Thus,  if  a  person  throws  a  firecracker  in  a 
crowd  where  it  is  tossed  from  hand  to  hand  and  finally  explodes  and 
puts  out  a  man's  eye,  the  offense  is  committed. 

(3.)  Assault  with  a  dangerous  weapon,  instrument;,  or  other 
thing. — See  matter  under  heading  "  IX,"  under  Ninety-third  article. 

Weapons,  etc.,  are  dangerous  when  they  are  used  in  such  manner 
that  they  are  likely  to  produce  death  or  great  bodily  harm.  Mere 
capability  of  being  so  used  is  not  enough. 

Boiling  water  may  be  so  used  as  to  be  a  dangerous  thing,  and  a 
pistol  may  be  so  used  as  not  to  be  a  dangerous  weapon. 

(4.)  Forgery. — At  common  law  "forgery  is  the  fraudulent  mak-^ 
ing  of  a  false  writing  which,  if  genuine,  would  be  apparently  of 
some  legal  efficacy."    (Bishop,  vol.  2,  p.  301.) 

Some  of  the  instruments  that  are  subjects  of  forgery  are  checks, 
indorsements,  orders  for  the  delivery  of  money  or  goods,  railroad 
tickets,  and  receipts. 

A  false  writing  includes  a  false  instrument  that  is  in  part  or  en- 
tirely printed,  engraved,  written  with  a  pencil,  or  made  by  photog- 
raphy or  other  device. 

A  false  writing  may  be  made  by  materially  altering  an  existing 
writing,  by  filling  in  a  paper  signed  in  blank,  or  by  signing  an  instru- 
ment already  written. 

The  writing  must  be  false — must  purport  to  be  what  it  is  not. 

Thus,  signing  another's  name  to  a  check  with  intent  to  defraud  is 
forgery,  as  the  instrument  purports  on  its  face  to  be  what  it  is  not. 
But  where,  after  the  false  signature  of  such  person  is  added  the  word 
hy  and  the  signature  of  the  person  making  the  check,  thus  indicat- 


PUNITIVE   ARTICLES.  285 

ing  an  authority  to  sign,  the  offense  is  not  forgery  even  if  no  such 
authority  exists,  as  the  check  on  its  face  is  what  it  purports  to  be. 

Forgery  may  be  committed  by  signing  one's  own  name  to  an  instru- 
ment. Thus,  where  a  check  payable  to  the  order  of  a  certain  person 
comes  into  the  hands  of  another  of  the  same  name,  he  commits  for- 
gery, when,  knowing  the  check  to  be  another's,  he  indorses  it  with 
his  own  name,  intending  to  defraud. 

Forgery  may  also  be  committed  by  signing  a  fictitious  name,  as 
where  a  person  signs  a  check  payable  to  himself  with  a  fictitious 
name;  but  when  he  passes  a  check  signed  by  him  with  a  fictitious 
name,  credit  being  extended  to  him  without  regard  to  his  name, 
forgery  is  not  committed. 

To  constitute  a  forgery  the  instrument  must  have  apparent  legal 
efficacy.  The  fraudulent  making  of  an  instrument  affirmatively  in- 
valid on  its  face  is  not  a  forgery.  But  this  requirement  does  not 
ordinarily  prevent  the  fraudulent  making  of  a  signature  on  a  check, 
for  instance,  from  being  a  forgery  even  if  there  be  no  resemblance  to 
the  genuine  signature  and  the  name  is  misspelled. 

The  false  writing  must  be  made  with  intent  to  defraud.  A  per- 
son who  signs  another's  name  to  an  instrument  believing  that  he 
has  authority  to  do  so  does  not  commit  a  forgery. 

It  is  immaterial,  however,  that  anyone  be  actually  defrauded  or 
that  no  further  step  be  made  toward  carrying  out  the  intent  to 
defraud  than  the  making  of  the  false  writing. 

(5)  SodoTny. — See  assault  with  intent  to  commit  sodomy  under 
heading  "  IX,"  under  ninety-third  article. 

PROOF. 

Crimes  in  general: 

{a)  That  the  accused  did  or  failed  to  do  the  acts  alleged. 

{h)  The  circumstances,  intent,  etc.,  as  specified. 

(1)  Assault: 

{a)  That  the  accused  did  the  overt  act  alleged. 

{h)  The  facts  and  circumstances  of  the  case  indicating  either  that 
such  an  act  was  an  actual  attempt  with  force  and  violence  to  do  a 
corporal  hurt  to  a  certain  person  or  that  such  act  was  apparently 
such  an  attempt  and  conveyed  to  the  mind  of  the  person  set  upon 
a  well-grounded  apprehension  of  such  injury. 

(2)  Assault  and  battery: 

{a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 
(h)  That  an  injury  resulted  to  such  person,  as  specified. 

(3)  Assault  with  a  dangerous  weapon,  instrument,  or  other  thing: 
{a)  That  the  accused  assaulted  a  certain  person  with  a  certain 

weapon,  instrument,  or  thing. 


286  MANUAL  FOR  COURTS-MARTIAL, 

(b)  That  facts  and  circumstances  of  the  case  indicating  that  such 
weapon,  instrument,  or  thing  was  used  in  a  manner  likely  to  produce 
death  or  great  bodily  harm. 

(4)  Forgery: 

(a)  That  a  certain  instrument  was  made.  (The  instrument  itself 
should  be  produced,  if  available.) 

(b)  That  such  instrument  is  a  forgery. 
(g)  That  the  accused  forged  it. 

(d)  The  facts  and  circumstances  of  the  case  indicating  the  intent 
of  the  accused  thereby  to  defraud  a  certain  person. 

(5)  Sodomy: 

See  proof  under  heading  "  IX,"  under  ninety-third  article. 


CHAPTER  XVIII. 
COURTS  OF  INQUIRY. 


Section  I:  Constitution:  Page. 

447.  When  and  by  whom  ordered 287 

448.  Limitation  upon  power  to  convene 288 

449.  Discretion  as  to  ordering  court 288 

Section  II:  Jurisdiction: 

450.  As  to  persons 288 

451.  As  to  time 288 

452.  As  to  subject  matter 288 

Section  III:  Composition: 

453.  Members 288 

454.  Recorder 289 

455.  Convening  order 289 

456 .  Rank  of  members 289 

457.  Reporter  and  interpreter 289 

Section  IV:  Powers: 

458.  To  summon  and  examine  witnesses 289 

459.  Refusal  to  appear  or  testify 289 

460.  Contempt 289 

Section  V:  Procedure: 

461.  General  principles 290 

462.  Presence  of  party  wljose  conduct  is  being  investigated 290 

463.  Counsel 290 

464.  Challenge 290 

465 .  Reduced  numbers 290 

466.  Oaths 290 

467 .  Examination  of  witnesses 291 

468.  Depositions 291 

469.  Conclusions 291 

470.  Obligation  of  secrecy 291 

471.  Revision  by  court 291 

472.  Publication  of  proceedings 292 

Section  VI :  Record : 

473.  How  authenticated 292 

474.  Disposition  of 292 

475.  Admissible  in  evidence .' 292 


Section  I. 

CONSTITUTION. 

447.  When  and  by  whom  ordered. — A  court  of  inquiry  to  examine 
into  the  nature  of  any  transaction  of  or  accusation  or  imputation 
against  any  officer  or  soldier  may  be  ordered  by  the  President  or  by 

287 


288  MANUAL  FOB  COURTS-MARTIAL. 

any  commanding  officer,  but  a  court  of  inquiry  shall  not  be  ordered 
by  any  commanding  officer  except  upon  the  request  of  the  officer  or 
soldier  whose  conduct  is  to  be  inquired  into.     (A.  W.  97.) 

448.  Limitation  upon  power  to  convene. — There  is  no  statutory  re- 
striction to  the  meaning  of  the  term  "  commanding  officer,"  conse- 
quently any  commander  of  the  officer  or  soldier  who  makes  the  request 
would  have  authority  to  convene  the  court,  but  if  the  charge  to  be 
inquired  into  is  beyond  the  jurisdiction  of  a  court-martial  which  such 
commander  can  appoint,  he  would  not,  by  analogies  of  the  service  in 
the  administration  of  military  justice,  be  the  proper  convening  au- 
thority in  such  case.  (Op.  J.  A.  G.,  approved  by  Secretary  of  War, 
Sept.  19,  1874.) 

449.  Discretion  as  to  ordering^  court. — Neither  the  President  nor  a 
commanding  officer  is  obliged  to  order  a  court  of  inquiry  on  demand 
of  an  officer  or  soldier.  Where  the  facts  are  thoroughly  understood 
by  the  authority  who  is  requested  to  order  a  court  of  inquiry  or  can  be 
satisfactorily  ascertained  by  an  investigating  officer,  the  command- 
ing officer  may,  in  his  discretion,  refuse  the  application;  but  in  the 
event  of  such  refusal  the  party,  if  not  satisfied,  may  appeal  to  higher 
authority.     (Winthrop,  p.  805.) 

Section  II. 
JURISDICTION. 

450.  As  to  persons. — A  court  of  inquiry  may  examine  into  the  con- 
duct of  officers  or  soldiers  only  (A.  W.  97),. and  the  inquiry  is  con- 
fined to  those  actually  in  the  service.     (Digest,  p.  586,  XVIII,  B.) 

451.  As  to  time. — The  statute  of  limitations  (A.  W.  39)  does  not 
apply  to  courts  of  inquiry.  There  is  no  legal  objection  therefore  to 
investigating  transactions  that  are  remote  in  time. 

452.  As  to  subject  matter. — The  inquiry  is  limited  to  transactions  of 
or  accusations  or  imputations  against  officers  or  soldiers.  (A.  W.  97.) 
The  principal  uses  which  courts  of  inquiry  are  expected  to  serve  are : 
(a)  For  determining  whether  there  should  be  a  trial  by  court-martial 
in  a  particular  instance;  (h)  for  informing  and  advising  superior 
authority  in  cases  which  appear  not  to  call  for  trial  by  court-martial, 
but  for  some  other  military  or  administrative  action;  and  (c)  for  the 
vindication  of  character  or  conduct.     (Winthrop,  p.  805.) 

Section  III. 
COMPOSITION. 

453.  Members. — A  court  of  inquiry  shall  consist  of  three  or  more 
officers.  (A.  W.  98.)  The  Secretary  of  War  may  assign  retired 
officers,  with  their  consent,  upon  courts  of  inquiry.     (Act  of  Apr. 


COURTS  OF   INQUIRY.  289 

23,  1904.)    In  time  of  war  retired  officers  may  be  employed  on  active 
duty  in  the  discretion  of  the  President.     (Act  of  June  3,  1916.) 

454.  Recorder. — For  each  court  of  inquiry  the  authority  appointing 
the  court  shall  appoint  a  recorder.  (A.  W.  98.)  The  recorder  is 
not  an  adviser  of  the  court  nor  a  prosecutor  before  it,  but  will  assist 
the  court,  if  it  so  desires,  in  all  matters  leading  to  correct  conclu- 
sions of  fact  and  law. 

455.  Convening  order. — The  form  of  the  convening  order  is  similar 
to  that  for  a  court-martial.  It  details  the  members  and  recorder  by 
name,  fixes  the  time  and  place  of  meeting,  specifies  the  subject  matter 
of  inquiry,  and  directs  a  report  of  the  facts  only,  or  of  the  facts  with 
an  opinion  on  the  merits  of  the  case. 

456.  Rank  of  members. — There  is  no  statute  prescribing  the  rank  of 
members,  but  when  it  can  be  avoided  they  should  not  be  inferior  in 
rank  to  the  officer  whose  conduct  is  being  inquired  into.  The  decision 
of  the  appointing  authority,  as  indicated  by  the  order  convening  the 
court,  is  conclusive  as  to  whether  or  not  it  can  be  avoided. 

457.  Reporter  and  interpreter. — The  president  of  a  court  of  inquiry 
has  the  same  power  to  appoint  reporters  and  interpreters  as  is  dele- 
gated to  the  president  of  a  court-martial.  (A.  W.  115.)  They  are 
usually  paid  at  the  rates  fi:xed  by  Army  regulations  for  those  of 
courts-martial.  (A.  R.  986-988.)  An  enlisted  man  may  be  detailed 
to  serve  as  stenographic  reporter  and  will  receive  extra  pay  as  pro- 
vided in  A.  R.  986. 

Section  IV. 

POWERS. 

458.  To  summon  and  examine  witnesses. — A  court  of  inquiry  and  the 
recorder  thereof  shall  have  the  same  power  to  summon  and  examine 
witnesses  as  is  given  to  a  court-martial  and  the  judge  advocate 
thereof.     (A.  W.  101.) 

459.  Refusal  to  appear  or  testify. — Any  person  not  subject  to  military 
law  who,  being  duly  subpoenaed  to  appear  as  a  witness  before  a  court 
of  inquiry  or  before  any  officer,  military  or  civil,  designated  to  take 
a  deposition  to  be  read  in  evidence  before  such  court,  willfully 
neglects  or  refuses  to  appear,  or  refuses  to  qualify  as  a  witness,  or  to 
testify,  or  to  produce  documentary  evidence  which  such  person  may 
have  been  legally  subpoenaed  to  produce,  shall  be  deemed  guilty  of 
a  misdemeanor  and  punished  as  in  like  offenses  with  respect  to  courts- 
martial.     (A.  W.  23.) 

460.  Contempt. — A  court  of  inquiry  has  no  authority  to  punish  for 
contempt,  but  any  conduct  before  it  to  the  prejudice  of  good  order 
and  military  discipline  by  persons  subject  to  military  law  may  be 
made  the  subject  of  charges  against  the  offender. 

91487°— ]  7 20 


290  MANUAL  FOR  COURTS-MARTIAL. 

Section  V. 
PROCEDURE. 

461.  General  principles. — A  court  of  inquiry  is  governed  by  the  gen- 
eral principles  of  military  law,  applying  the  analogies  of  a  court- 
martial  where  they  are  applicable,  and  recurring  to  adjudged  cases, 
precedents,  rules,  authoritative  legal  opinions,  and  approved  books  of 
legal  exposition  where  there  is  no  pertinent  paramount  stated  rule. 
(28  Op.  Atty.  Gen.,  364.)  A  court  of  inquiry  is  not  really  a  court 
in  the  legal  sense  of  the  term,  for  no  criminal  issue  is  formed  before 
it,  it  arraigns  no  accused,  receives  no  plea,  makes  no  findings  of 
guilt  or  innocence,  awards  no  punishment,  and  expresses  no  opinion 
unless  specially  ordered  to  do  so. 

462.  Presence  of  party  whose  conduct  is  being  investigated. — The  pres- 
ence of  the  party  whose  conduct  is  being  investigated  is  not  essential 
and  his  absence  does  not  affect  the  authority  of  the  court  to  proceed 
with  the  hearing. 

463.  Counsel. — The  party  whose  conduct  is  being  inquired  into  shall 
have  the  right  to  be  represented  before  the  court  by  counsel  of  his 
own  selection,  if  such  counsel  be  reasonably  available.  (A.  W.  99.) 
So  also  the  accuser,  w^here  there  is  one,  should  usually  be  allowed  to 
be  present  with  counsel,  and  a  similar  privilege  may  properly  be  ex- 
tended to  any  officer  who  will  be  materially  involved  in  the  inquiry. 
(Winthrop,  p.  812.) 

464.  Challenge. — Members  of  a  court  of  inquiry  may  be  challenged 
by  the  party  whose  conduct  is  being  inquired  into,  but  only  for  cause 
stated  to  the  court.  The  court  shall  determine  the  relevancy  and 
validity  of  any  challenge,  and  shall  not  receive  a  challenge  to  more 
than  one  member  at  a  time.     (A.  W.  99.) 

465.  Reduced  numbers. — Where  the  number  of  members  is  reduced  by 
casualty  or  challenge,  the  court  may  proceed  with  the  reduced  num- 
ber, if  not  below  the  minimum,  but  the  appointing  authority  should 
be  notified  in  order  that  he  may  detail  new  members  if  he  desires  to 
do  so.  If  any  testimony  has  been  taken  before  a  new  member  is 
added,  it  should  be  read  to  him  in  the  presence  of  the  other  members. 
In  the  absence  of  the  recorder  the  junior  member  can  not  act  as 
recorder.  The  proper  procedure  is  to  notify  the  convening  authority 
and  adjourn  to  await  the  appointment  of  another  recorder. 

466.  Oaths. — The  recorder  of  a  court  of  inquiry  shall  administer  to 
the  members  the  following  oath : 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will  well  and  truly  examine  and 
inquire,  according  to  the  evidence,  into  the  matter  now  before  you,  without 
partiality,  favor,  affection,  prejudice,  or  hope  of  reward.     So  help  you  God. 


COURTS  OF   INQUIRY.  291 

After  which  the  president  of  the  court  shall  administer  to  the 
recorder  the  following  oath : 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will,  according  to  your  best  abili- 
ties, accurately  and  impartially  record  the  proceedings  of  the  court  and  the 
evidence  to  be  given  in  the  case  in  hearing.     So  help  you  God. 

In  case  of  affirmation  the  closing  sentence  of  adjuration  will  be 
omitted.     (A.  W.  100.) 

Witnesses  shall  take  the  same  oath  or  affirmation  that  is  taken  by 
witnesses  before  courts-martial,  and  a  reporter  or  interpreter  shall, 
before  entering  upon  his  duties,  take  the  oath  or  affirmation  required 
of  a  reporter  or  an  interpreter  for  a  court-martial.     (A.  W.  101.) 

467.  Examination  of  witnesses. — The  examination  of  witnesses  may 
be  by  the  court,  by  a  member  thereof,  or  by  the  recorder,  in  the  discre- 
tion of  the  court.  The  party  whose  conduct  is  being  inquired  into 
or  his  counsel,  if  any,  shall  be  permitted  to  examine  and  cross- 
examine  witnesses  so  as  fully  to  investigate  the  circumstances  in  ques- 
tion. (A.  W.  101.)  A  witness  may  not  be  compelled  to  answer  any 
question  which  would  tend  to  incriminate  or  degrade  him.  (A.  W. 
24.) 

468.  Depositions. — Depositions  to  be  read  in  evidence  before  courts 
of  inquiry  are  taken  and  admitted  in  evidence  under  the  same  rules 
governing  their  taking  and  admissibility  in  evidence  before  courts- 
martial.     (A.  W.  25,  26.) 

469.  Conclusions. — The  court  must,  as  a  finding,  give  its  conclusions 
as  to  the  facts,  and,  when  ordered,  must  also  give  an  opinion  on  the 
merits  of  the  case.  The  conclusions  or  opinion  may  not  be  unani- 
mous, in  which  case  a  dissenting  conclusion  or  opinion  is  authorized. 

470.  Obligation  of  secrecy. — The  oath  of  members  of  a  court  of  in- 
quiry, unlike  that  of  members  of  a  court-martial,  does  not  enjoin 
upon  them  secrecy  as  to  the  votes  and  opinions  of  members,  but  under 
the  custom  of  the  service  it  would  be  conduct  prejudicial  to  disci- 
pline to  divulge  the  recommendation  or  opinion  of  the  court  until  an- 
nounced by  the  appointing  authority,  or  to  disclose  the  vote  or  opin- 
ion of  a  member  unless  legally  required  to  do  so. 

471.  Revision  by  court. — If  not  satisfied  with  the  investigation,  or 
Avith  the  report  or  opinion,  the  reviewing  authority  may  reassemble 
the  court,  in  the  same  manner  as  a  court-martial,  and  return  the  pro- 
ceedings with  direction  either  to  have  the  investigation  pursued 
further  and  completed,  or  the  report  of  the  facts  made  more  detailed 
and  comprehensive,  or  the  opinion  expressed  in  terms  more  definite 
and  unequivocal  or  more  responsive  to  the  original  instructions,  or  to 
correct  or  supply  some  other  error  or  defect.  The  inquiry  not  being  a 
trial  but  an  investigation  merely,  the  court  may  properly  be  required, 
upon  revision,  to  reexamine  witnesses  or  to  take  entirely  new  testi- 


292  MANUAL  FOR  COURTS-MARTIAL. 

mony,  or  it  may  do  so  of  its  own  motion  without  orders  in  connec- 
tion with  the  revision.     (Winthrop,  p.  819.) 

472.  Publication  of  proceedings. — The  reviewing  authority,  having 
taken  final  action  upon  the  report  or  opinion,  may  publish  in  orders, 
in  whole  or  in  part,  or  in  substance,  the  report  of  the  court  upon  the 
subject  of  the  inquiry,  with  the  opinion,  if  any,  and  the  determina- 
tion had  or  action  taken  thereon.  Upon  considerations,  however,  of 
policy  or  justice,  the  President  or  commander  may,  in  his  discretion, 
delay  the  publication,  or  omit  altogether  the  publication  of,  the 
report,  etc.,  or  may  publish  the  result  alone,  as,  for  example,  that  it  is 
determined  that  no  further  proceedings  are  called  for  in  the  case. 

Section  VI. 
RECORD. 

473.  How  anthenticated. — Each  court  of  inquiry  shall  keep  a  record 
of  its  proceedings,  which  shall  be  authenticated  by  the  signature  of 
the  president  and  the  recorder  thereof.  In  case  the  record  can  not  be 
authenticated  by  the  recorder,  by  reason  of  his  death,  disability,  or 
absence,  it  shall  be  signed  by  the  president  and  by  one  other  mem- 
ber of  the  court.     (A.  W.  103.) 

474.  Disposition  of. — The  record  shall  be  forwarded  to  the  reviewing 
authority.  (A.  W.  103.)  Should  the  court  be  appointed  by  the 
President  the  proceedings  will  be  sent  direct  to  the  Judge  Advo- 
cate General  of  the  Army.  To  his  office  will  be  forwarded  the 
original  proceedings  of  all  courts  of  inquiry  with  the  decisions  and 
orders  of  the  reviewing  authority  made  thereon,  accompanied  by  five 
copies  of  the  order  publishing  the  case,  if  there  be  any,  also  a  copy  of 
every  subsequent  order  affecting  the  case.  When  more  than  one  case 
is  embraced  in  a  single  order,  a  sufficient  number  of  copies  will  be 
forwarded  to  enable  one  to  be  filed  with  each  record.     (A.  E.  917.) 

475.  Admissible  in  evidence. — The  record  of  the  proceedings  of  a 
court  of  inquiry  may  be  read  in  evidence  before  any  court-martial  or 
military  commission  in  any  case  not  capital  nor  extending  to  the 
dismissal  of  an  officer,  and  may  also  be  read  in  evidence  in  any  pro- 
ceeding before  a  court  of  inquiry  or  a  military  board:  Provided^ 
That  such  evidence  may  be  adduced  by  the  defense  in  capital  cases 
or  cases  extending  to  the  dismissal  of  an  officer.  (A.  W.  27.  See 
par.  272.) 


CHAPTER  XIX. 
HABEAS  CORPUS. 


Page. 

Section  I:  Purpose  of  writ 293 

476.  To  determine  legality  of  restraint 293 

Section  II:  Where  restraint  is  by  the  United  States 293 

477.  State  court  without  authority 293 

Section  III:  Return  to  writ  issued  by  State  court 294 

478.  To  show  authority  for  restraint 294 

(a)  Witness  held  under  warrant  of  attachment 294 

(6)  Enlisted  man  or  general  prisoner 294 

Section  IV:  Return  to  writ  issued  by  a  United  States  court  295 

479.  Contents 295 

Section  V:  Writ  issued  in  the  Philippine  Islands 295 

480.  When  return  conclusive 295 


Section  I. 
PURPOSE  OF  WRIT. 

476.  To  determine  legality  of  restraint. — The  purpose  of  the  writ  of 
habeas  corpus  is  to  bring  the  person  seeking  the  benefit  of  it  before 
the  court  or  judge  to  determine  whether  or  not  he  is  illegally  re- 
strained of  his  liberty.  It  is  a  summary  remedy  for  unlawful  re- 
straint of  liberty  and  it  can  not  be  made  use  of  to  perform  the  func- 
tion of  a  writ  of  error  or  an  appeal.  AVhere  it  is  decided  that  the 
restraint  is  unlawful  he  is  ordered  released,  but  if  the  restraint  is 
lawful  the  writ  is  dismissed.  If  the  restraint  be  by  virtue  of  legal 
process,  the  validity  and  present  force  of  such  process  are  the  only 
subjects  of  investigation. 

Section  II. 

WHERE  RESTRAINT  IS  BY  THE  UNITED   STATES. 

477.  State  court  without  authority. — A  State  court  is  without  authority 
to  inquire  into  the  legality  of  the  restraint  where  it  appears  that  the 
custody  is  by  virtue  "  of  the  authority  of  the  United  States,"  the 
principle  being  that  no  State  can  authorize  one  of  its  judges  or  courts 
to  exercise  judicial  power,  by  habeas  corpus,  within  the  jurisdiction 
of  another  and  independent  government.  No  State  judge  or  court, 
after  they  are  judicially  informed  that  the  party  is  held  under  the 
authority  of  the  United  States,  has  any  right  to  interfere  with  him 
or  to  require  him  to  be  brought  before  them.  (Robb  v.  Connolly,  111 
U.  S.,  624,  632;  Ableman  v.  Booth,  21  How.,  506,  514;  Tarble's  case, 

293 


294  MANUAL  FOE    COURTS-MARTIAL. 

13  Wall.,  397,  409.)  If  a  party  thus  held  be  illegally  imprisoned,  it 
is  for  the  courts  or  judicial  officers  of  the  United  States,  and  those 
courts  or  officers  alone,  to  grant  him  release.  (Tarble's  case,  13  Wall., 
397,  411.) 

Section  III. 

RETURN  TO  WRIT  ISSUED  BY  STATE  COURT. 

478.  To  show  authority  for  restraint. — The  return  should  be  suffi- 
cient in  its  detail  of  facts  to  show  distinctly  that  the  imprisonment  is 
under  the  authority,  or  claim  and  color  of  the  authority,  of  the 
United  States  and  to  exclude  the  suspicion  of  imposition  or  oppres- 
sion on  the  part  of  the  officer  making  the  return.  The  process  or 
orders  under  which  the  petitioner  is  held  should  be  produced  with 
the  return  and  submitted  to  inspection  in  order  that  the  court  or  the 
judge  issuing  the  writ  may  see  that  the  officer  is  acting  in  good  faith, 
under  the  authority  or  claim  and  color  of  authority  of  the  United 
States,  and  not  under  the  mere  pretense  of  having  such  authority. 
(Tarble's  case,  13  Wall.,  397,  409;  Covell  v.  Heyman,  111  U.  S., 
176,  183.) 

(a)  Witness  held  under  warrant  of  attachment. — ^Where  the  petitioner 
is  a  civilian  who  has  been  apprehended  under  a  warrant  of  attach- 
ment to  be  taken  before  a  court-martial  to  testify  as  a  witness,  the 
officer  making  the  return  to  the  writ  issued  by  a  State  court  or  judge 
will  not  produce  the  body,  but  will,  by  his  return,  set  forth  fully  the 
authority  by  which  he  holds  the  person  and  allege  that  the  State 
court,  or  judge,  issuing  the  writ  is  without  jurisdiction  to  issue  the 
same  and  ask  to  have  it  dismissed.  He  will  exhibit  to  the  court  or 
judge  issuing  the  writ  of  habeas  corpus  the  warrant  of  attachment 
and  the  subpoena  (and  the  proof  of  service  of  the  subpoena)  on 
which  the  warrant  of  attachment  was  based,  and  also  a  certified 
copy  of  the  order  convening  the  court-martial  before  which  the  wit- 
ness was  subpoenaed  to  testify,  together  with  a  copy  of  the  charges 
and  specifications  in  the  case  in  which  he  was  subpoenaed  to  testify, 
and  an  affidavit  showing  that  the  witness  has  failed  to  appear  in 
response  to  such  subpoena. 

[Note. — See  A.  R.  997.    For  form  of  return,  see  Form  B,  Appendix  15.] 

(b)  Enlisted  man  or  general  prisoner. — ^The  return  to  a  writ  of  habeas 
corpus  issued  by  a  State  court  or  judge  to  produce  an  enlisted  man  or 
a  general  prisoner  and  show  cause  for  his  detention  will  show  in 
writing  that  the  subject  of  the  writ  is  a  duly  enlisted  soldier  of  the 
United  States  or  a  general  prisoner,  as  the  case  may  be,  and  set  forth 
fully  the  cause  of  his  detention,  but  the  officer  making  the  return  will 
decline  to  produce  in  court  the  body  of  the  prisoner  named  in  the 


HABEAS  COEPUS.  295 

writ,  giving  as, a  reason  for  such  refusal  the  fact  that  the  Supreme 
Court  of  the  United  States  has  decided  that  a  State  court  or  judge 
has  no  jurisdiction  in  such  a  case. 

[Note. — See  A.  R.  998.  For  form  of  return,  see  Form  D,  Appendix  15.  A 
deserter  apprehended  by  a  civil  oflScer  authorized  by  a  statute  of  the  United 
States  to  appreliend  deserters  is  in  the  custody  of  the  United  States.  See  U.  S. 
t?.  Reaves,  126  Fed.  Rep.,  127.] 

Section  IV. 
RETURN  TO  WRIT  ISSUED  BY  A  UNITED  STATES  COURT. 

479.  Contents. — A  writ  of  habeas  corpus  issued  by  a  United  States 
court  or  judge  will  be  promptly  obeyed.  The  person  alleged  to  be 
illegally  restrained  of  his  liberty  will  be  taken  before  the  court  from 
which  the  writ  has  issued  and  a  return  made,  setting  forth  the  reasons 
for  his  restraint.  The  officer  upon  whom  such  writ  is  served  will  at 
once  report  the  fact  of  such  service  by  telegraph  direct  to  The  Adju- 
tant General  of  the  Army  and  the  commanding  general  of  the  depart- 
ment, stating  briefly  the  grounds  on  which  the  release  of  the  party  is 
sought. 

[Note. — See  A.  R.  999.  For  form  where  a  civilian  witness  is  held  under  war- 
rant of  attachment,  see  Form  A,  Appendix  15.  For  form  where  an  enlisted 
man  or  general  prisoner  is  held,  see  Form  C,  Appendix  15.  For  brief  of  authori- 
ties when  writ  is  applied  for  on  grounds  of  age,  see  Appendix  15.] 

Section  V. 
WRIT  ISSUED  IN  THE  PHILIPPINE  ISLANDS. 

480.  When  return  conclusive. — It  shall  be  a  conclusive  answer  to  a 
writ  of  habeas  corpus  against  a  military  officer  or  soldier  and  a  suffi- 
cient excuse  for  not  producing  the  prisoner  if  the  commanding  gen- 
eral or  any  general  officer  in  command  of  the  department  or  district 
shall  certify  that  the  prisoner  is  held  by  him  either — 

(«2)  As  a  prisoner  of  war;  or 

{b)  As  a  member  of  the  Army,  civilian  employee  thereof,  or  a 
camp  follower  and  subject  to  its  discipline;  or 

{c)  As  a  prisoner  guilty  of  violation  of  the  laws  of  war  commit- 
ted in  any  unpacified  province  or  territory  and  who  has  escaped  into 
provinces  officially  declared  to  be  under  civil  control  and  has  been 
there  captured  by  military  authorities  and  is  held  for  trial  for  such 
violations  of  the  laws  of  war. 

[Note.— Sec.  1,  Act.  No.  272,  Philippine  Commission,  Oct.  21,  1901,  and  sec.  4, 
Act.  No.  421,  id.,  June  23,  1902.  Respectful  return  in  writing  will  be  made  in 
the  case  of  prisoners  who  may  be  exempted  from  jurisdiction  by  the  provisions 
of  these  acts  stating  the  facts  of  the  case,  but  the  body  of  the  prisoner  will  not 
be  produced.  In  all  other  cases  the  return  will  be  made  and  the  body  produced 
before  the  proper  tribunal.] 


CHAPTEE  XX. 
MISCELLANEOUS  AND  TRANSITORY  PROVISIONS. 


Page. 

Section  I:  Miscellaneous  provisions 297 

481.  Injuries  to  persons  or  property — Redress 297 

482.  Effects  of  deceased  persons — Disposition 298 

483.  Inquests 299 

484.  Removal  of  civil  suits 300 

485.  Complaints  of  wrongs 300 

486.  Articles  of  War— When  effective 301 

Section  II :  Transitory  provision 301 

487.  Prior  offenses  subject  to  previous  laws 301 


Section  I. 

MISCELLANEOUS  PROVISIONS. 

481.  Injuries  to  persons  or  property — ^Redress. — Article  105  imposes 
upon  a  commanding  officer,  upon  receipt  of  a  complaint  that  damage 
has  been  done  to  the  property  of  any  person,  or  that  his  property  has 
been  wrongfully  taken,  by  any  person  subject  to  military  law,  the 
duty  to  convene  a  board  of  officers  consisting  of  any  number  from 
one  to  three  to  investigate  the  complaint.  The  article  provides  the 
administrative  machinery  by  which  money  reparation  for  acts  of 
waste,  spoil,  destruction,  or  depredation,  denounced  in  A.  W.  89  as 
offenses,  shall  be  made  effective.  The  complaint  will  more  properly 
be  made  in  writing  by  the  injured  party  or  his  representative,  and 
should  set  forth  the  details  of  the  injury  and  be  sustained  by  evi- 
dence showing  it  to  be  meritorious  and  well  founded;  and  this  evi- 
dence may  also  properly  be  required  to  be  exhibited  in  the  form  of 
affidavits  or  written  statements.  It  is  competent,  however,  for  a  com- 
manding officer,  apprised  by  the  report  of  any  person  in  the  military 
service,  or  by  the  oral  complaint  of  the  party  injured,  of  any  such 
damage,  to  proceed  with  the  investigation  as  here  outlined  in  case 
of  written  complaint  submitted  by  or  in  behalf  of  the  party  injured 
and  supported  by  affidavits  or  written  statement.  The  board  will 
be  convened  with  the  least  practicable  delay,  is  empowered  to 
summon  witnesses,  examine  them  under  oath  or  affirmation,  receive 
depositions  or  other  documentary  evidence,  and  assess  the  damages 
against  the  person  or  persons  determined  to  be  responsible  for  the 

297 


298  MANUAL  FOR  COURTS-MARTIAL. 

damage  or  wrongful  taking.  The  board's  assessment  of  damages  is 
subject  to  the  approval  of  the  commanding  officer  and  an  assessment 
thus  approved  will  be  stopped  against  the  pay  of  the  offender.  The 
order  of  the  commanding  officer  directing  stoppages  authorized -by 
the  article  is  conclusive  on  any  disbursing  officer  for  the  payment  by 
him  to  the  injured  party  of  the  stoppages. 

The  occasions  for  resorting  to  the  procedure  under  this  article 
are  more  frequent  in  a  period  pending  or  immediately  succeeding  a 
time  of  war,  or  during  field  operations  and  maneuvers.  As  the  abso- 
lute identity  of  the  guilty  parties  can  not  always  be  determined,  the 
article  further  provides  that  in  such  a  case,  and  when  the  organiza- 
tion or  detachment  to  which  they  belong  is  known,  stoppages  to  the 
amount  of  damages  inflicted  may  be  made  and  assessed  in  such  pro- 
portion as  may  be  deemed  just  upon  the  individual  members  thereof 
who  are  shown  to  have  been  present  with  such  organization  or  detach- 
ment at  the  time  the  damages  complained  of  were  inflicted,  as  de- 
termined by  the  approved  findings  of  the  board. 

The  guilty  parties  may  be  tried  and  punished  for  the  military 
offense  involved  in  his  and  their  act  under  A.  W.  89,  quite  irrespec- 
tively of  any  proceeding  for  the  reparation  of  the  parties  injured 
had. under  this  article.  A  trial,  however,  will  preferably  be  first 
ordered,  since,  if  reparation  be  subsequently  sought  to  be  made,  the 
commander  and  the  board  will  have  the  benefit  of  any  material  facts 
developed  upon  the  original  investigation.  So,  if  the  accused  be 
acquitted,  such  acquittal  will  furnish  persuasive  but  not  necessarily 
conclusive  ground  for  not  favorably  entertaining  the  complaint  or 
for  reducing  the  amount  to  be  assessed. 

482.  Effects  of  deceased  persons — Disposition. — In  case  of  the  death  of 
any  person  subject  to  military  law,  the  commanding  officer  of  the 
place  or  command  will  permit  the  legal  representative  or  widow  of 
the  deceased,  if  present,  to  take  possession  of  all  his  effects  then  in 
camp  or  quarters,  and  if  no  legal  representative  or  widow  be  present 
the  commanding  officer  shall  direct  a  summary  court  to  secure  all 
such  effects ;  and  said  summary  court  shall  have  authority  to  convert 
such  effects  into  cash,  by  public  or  private  sale,  not  earlier  than  30 
days  after  the  death  of  the  deceased,  and  to  collect  and  receive  any 
debts  due  decedent's  estate  by  local  debtors;  and  as  soon  as  prac- 
ticable after  converting  such  effects  into  cash  said  summary  court 
shall  deposit  with  the  proper  officer,  to  be  designated  in  regula- 
tions, any  cash  belonging  to  decedent's  estate,  and  shall  transmit  a 
receipt  for  such  deposit,  accompanied  by  any  will  or  other  papers  of 
value  belonging  to  the  deceased,  an  inventory  of  the  effects  secured 
by  said  summary  court,  and  a  full  account  of  his  transactions  to  the 
War  Department  for  action  as  authorized  by  law  in  the  settlement 
of  the  accounts  of  deceased  officers  or  enlisted  men  of  the  Army ;  but 


MISCELLANEOUS  AND   TRANSITORY  PROVISIONS.  299 

if  in  the  meantime  the  legal  representative,  or  widow,  shall  present 
himself  or  herself  to  take  possession  of  decedent's  estate,  the  said 
summary  court  shall  turn  over  to  him  or  her  all  effects  not  sold  and 
cash  belonging  to  said  estate,  together  with  an  inventory  and  account, 
and  make  to  the  War  Department  a  full  report  of  his  transactions. 

The  provisions  of  this  article  shall  be  applicable  to  inmates  of  the 
United  States  Soldiers'  Home  who  die  in  any  United  States  military 
hospital  outside  of  the  District  of  Columbia  where  sent  from  the 
home  for  treatment.     (A.  W.  112.) 

483.  Inquests. — Article  113  imposes  upon  the  summary  court-martial 
the  principal  duties  of  the  office  of  coroner  at  common  law,  viz,  to 
investigate  the  cause  of  sudden,  violent,  and  unnatural  deaths.  When 
a  person  is  found  dead  at  a  place  described  in  the  article,  and  there 
is  reasonable  belief  that  his  death  has  occurred  from  violence  or 
other  unlawful  means,  the  commanding  officer  will  immediately 
designate  and  direct  a  summary  court-martial  to  investigate  the  cir- 
cumstances of  the  death,  to  the  end  that  the  cause  thereof  may  be 
determined  and  the  persons  criminally  responsible  therefor  may  be 
brought  to  justice.  The  summary  court-martial  will  with  the  least 
practicable  delay  view  the  body  of  the  deceased  and  summon  and 
examine,  under  oath  or  affirmation,  such  witnesses  as  may  have  knowl- 
edge of  the  cause  and  circumstances  of  the  death.  The  summary 
court-martial  should  warn  every  person  testifying  at  the  inquest 
who  is  accused  or  suspected  that  he  is  not  required  to  give  evidence 
incriminating  himself,  and  that  any  statement  or  evidence  he  gives 
may  be  used  against  him  in  the  event  of  any  further  proceedings  be- 
ing instituted.  If  expert  medical  testimony  is  necessary,  the  com- 
manding officer  will,  at  the  request  of  the  summary  court-martial, 
direct  a  medical  officer  to  make  such  examination  of  the  body  of  the 
deceased  as  may  be  necessary  and  to  appear  as  a  witness  at  the  in- 
quest. The  testimony  of  each  witness  will  be  reduced  to  writing, 
and  will,  except  when  stenographically  reported,  be  subscribed  by 
him,  and  will  be  appended  to  the  report  of  the  inquest. 

If  the  body  of  the  deceased  shows  wounds  or  bruises  such  as  to 
indicate  or  create  suspicion  that  he  came  to  his  death  by  violent 
means,  it  shall  be  the  duty  of  the  summary  court-martial  to  ascer- 
tain with  as  much  exactness  as  possible  the  precise  nature  of  the 
wounds  or  blows  and  the  character  of  the  instrument  by  which  the 
wounds  were  inflicted ;  the  person  or  persons  by  whom  the  fatal  blow 
or  blows  were  dealt ;  if  there  were  any  aiders  or  abettors ;  and  such 
other  particulars  as  may  afford  the  means  of  drawing  up,  with  the 
precision  required  by  law,  the  necessary  charges  and  specifications 
against  the  person  or  persons  accused  of  the  homicide. 

The  summary  court  officer  will  render  a  written  report  of  his 
investigation  to  the  commanding  officer,  which  report  will  state  his 


300  MANUAL  FOR  COURTS-MARTIAL. 

finding  as  to  the  cause  of  the  death  and  the  names  of  the  persons 
criminally  responsible  therefor,  if  in  his  opinion  there  be  any  such. 
Such  persons,  though  not  subject  to  military  law,  may,  if  found  at 
any  post  over  which  the  United  States  has  exclusive  jurisdiction,  be 
confined  by  the  commanding  officer  for  such  time  as  may  be  necessary 
for  their  delivery  to  the  civil  authorities.  If  such  persons  are  subject 
to  military  law  and  appear  to  be  guilty  of  an  offense  not  triable  by 
court-martial,  they  will  be  confined  by  the  commanding  officer,  who 
will  immediately  furnish  the  proper  United  States  district  attorney 
with  a  copy  of  the  findings  of  the  summary  court  officer. 

If  the  person  over  whose  body  the  inquest  is  held  is  not  identified 
as  an  officer  or  soldier,  the  report  of  the  summary  court-martial  shall 
give  a  description  of  the  deceased,  which  shall  specify  the  name,  if 
known,  the  apparent  age,  the  'sex,  the  color  of  the  eyes  and  hair,  and 
all  marks  or  other  particulars  which  may  assist  in  the  identification 
of  the  person. 

[Note. — For  form  of  report  of  inquest  see  Appendix  19.] 

484.  Removal  of  civil  suits. — When  any  civil  suit  or  criminal  prosecu- 
tion is  commenced  in  any  court  of  a  State  against  any  officer,  soldier, 
or  other  person  in  the  military  service  of  the  United  States  on  ac- 
count of  any  act  done  under  color  of  his  office  or  status,  or  in  respect 
to  which  he  claims  any  right,  title,  or  authority  under  any  law  of  the 
United  States  respecting  the  military  forces  thereof,  or  under  the 
law  of  war,  such  suit  or  prosecution  may  at  any  time  before  the  trial 
or  final  hearing  thereof  be  removed  for  trial  into  the  district  court 
of  the  United  States  in  the  district  where  the  same  is  pending  in 
the  manner  prescribed  in  section  33  of  the  act  entitled  "An  Act  to 
codify,  revise,  and  amend  the  laws  relating  to  the  judiciary,"  ap- 
proved March  3, 1911  (36  Stat.,  1097),  and  the  cause  shall  thereupon 
be  entered  on  the  docket  of  said  district  court  and  shall  proceed 
therein  as  if  the  cause  had  been  originally  commenced  in  said  dis- 
trict court  and  the  same  proceedings  had  been  taken  in  such  suit 
or  prosecution  in  said  district  court  as  shall  have  been  had  therein  in 
said  State  court  prior  to  its  removal,  and  said  district  court  shall 
have  full  power  to  hear  and  determine  said  cause.     (A.  W.  117.) 

485.  Complaints  of  wrongs. — Any  officer  or  soldier  who  believes  him- 
self wronged  by  his  commanding  officer,  and,  upon  due  application 
to  such  commander,  is  refused  redress,  may  complain  to  the  general 
commanding  in  the  locality  where  the  officer  against  whom  the  com- 
plaint is  made  is  stationed.  The  general  shall  examine  into  said  com- 
plaint and  take  proper  measures  for  redressing  the  wrong  complained 
of;  and  he  shall,  as  soon  as  possible,  transmit  to  the  Department  of 
War  a  true  statement  of  such  complaint,  with  the  proceedings  had 
thereon.     (A.  W.  121.  ) 


MISCELLANEOUS  AND  TEANSITORY  PROVISIONS.  301 

486.  Articles  of  War — When  effective. — Section  3  of  the  Act  of  Con- 
gress entitled  "An  Act  making  appropriations  for  the  support  of 
the  Army  for  the  fiscal  year  ending  June  30,  1917,  and  for  other 
purposes,"  approved  August  29,  1916  (39  Stat.,  650-670),  amends 
section  1342,  Revised  Statutes  of  the  United  States,  and  contains  the 
Articles  of  War.  It  is  provided  by  section  4  of  the  act  cited  that 
the  Articles  of  War  will  be  in  force  and  effect  on  and  after  March  1, 
1917,  except  that  articles  4,  13, 14,  15,  29,  47,  49,  and  92  became  effec- 
tive upon  the  approval  of  the  act,  August  29,  1916. 

Section  II. 
TRANSITORY  PROVISION. 

487.  Prior  offenses  subject  to  previous  laws. — It  is  provided  by  sec- 
tion 5  of  the  act  of  Congress  entitled  "An  Act  making  appropriations 
for  the  support  of  the  Army  for  the  fiscal  year  ending  June  30, 
1917,  and  for  other  purposes,"  approved  August  29,  1916  (39  Stat., 
670),  that  all  offenses  committed  and  all  penalties,  forfeitures,  fines, 
or  liabilities  incurred  prior  to  the  taking  effect  of  that  act  under  any 
law  embraced  in  or  modified,  changed,  or  repealed  by  that  act  may  be 
prosecuted,  punished,  and  enforced  in  the  same  manner  and  with 
the  same  effect  as  if  that  act  had  not  been  passed. 


APPENDICES. 


No.  Page. 

1.  The  Articles  of  War 305 

2.  System  of  courts-martial  for  National  Guard  not  in  the  service  of  the  United 

States 331 

3.  Charge  sheet 333 

4.  Forms  for  charges 335 

5.  Suggestions  for  trial  judge  advocates 351 

6.  Form  for  record — General  court-martial  and  revision  proceedings 355 

7.  Form  for  record — Special  court-martial 363 

8.  Form  for  record — Summary  court-martial 365 

9.  Forms  for  sentences 367 

10.  Forms  for  action  by  reviewing  authority 369 

11.  Court-martial  orders 373 

(a)  General  court-martial 373 

(6)  Special  court-martial 374 

12.  Form  for  interrogatories  and  deposition 377 

13.  Subpoena  for  civilian  witness 381 

14.  Warrant  of  attachment 385 

15.  Returns  and  briefs  in  habeas  corpus  proceedings 387 

16.  Voucher  (Form  338) :  Civilian  witness  not  in  Government  employ 395 

17.  Voucher  (Form  350A):  Civilian  witness  in  Government  employ 399 

18.  Voucher  (Form  339) :  Personal  services,  reporter 403 

19.  Report  of  inquest 407 

303 


APPENDIX  I. 
THE  ARTICLES  OF  WAR, 


TABLE  OF  CONTENTS. 

I.  Pjkeliminaby  Provisions  : 

Sec.  1342,  Revised  Statutes. 

Art.  1.  Definitions. 

Art.  2.  Persons  subject  to  military  law. 
II.  Couets-Maetial  : 

Art.  3.  Courts-martial  classified, 
(a.)  Composition — 

Art.  4.  Who  may  serve  on  courts-martial. 

Art.  5.  General  courts-martial. 

Art.  6.  Special  courts-martial. 

Art.  7.  Summary  courts-martial. 
(&)  By  whom  appointed — 

Art.  8.  General  courts-martial. 

Art.  9.  Special  courts-martial. 

Art.  10.  Summary  courts-martial. 

Art.  11.  Appointment  of  judge  advocates, 
(c)  Jurisdiction — 

Art.  12.  General  courts-martial. 

Art.  13.  Special  courts-martial. 

Art.  14.  Summary  courts-martial. 

Art.  15.  Not  exclusive. 

Art.  16.  Officers,  how  triable. 
id)  Procedure — 

Art.  17.  Judge  advocate  to  prosecute. 

Art.  18.  Challenges. 

Art.  19.  Oaths. 

Art.  20.  Continuances. 

Art.  21.  Refusal  to  plead. 

Art.  22.  Process  to  obtain  witnesses. 

Art.  23.  Refusal  to  appear  or  testify. 

Art.  24.  Compulsory  self-incrimination  prohibited. 

Art.  25.  Depositions — when  admissible. 

Art.  26.  Depositions — before  whom  taken. 

Art.  27.  Courts  of  inquiry — ^records  of — when  admissible. 

Art.  28.  Resignation  without  acceptance  does  not  release  officer. 

Art.  29.  Enlistment  without  discharge. 

Art.  30.  Closed  sessions. 

Art.  31.  Order  of  voting. 

Art.  32.  Contempts. 

Art.  33.  Records — general  courts-martial. 

Art.  34.  Records — special  and  summary  courts-martial. 
91487°— 17 21  305 


306  MANUAL  FOE  COURTS-MARTIAL. 

II.  Coubts-Mabtial — Contiuued. 

{d)   Procedure — Contiuued. 

Art.  35.  Diposition  of  records — general  courts-martial. 

Art.  36.  Disposition  of  records — special  and  summary  courts-martial. 

Art.  87.  Irregularities — effect  of. 

Art.  38.  President  may  prescribe  rules, 
(e)  Limitations  upon  prosecutions — 

Art.  39.  As  to  time. 

Art.  40.  As  to  number. 
(/)  Punishments — 

Art.  41.  Certain  kinds  prohibited. 

Art.  42.  Places  of  confinement — when  lawful. 

Art.  43.  Death  sentence — when  lawful. 

Art.  44.  Cowardice ;  fraud  ;  accessory  penalty. 

Art.  45.  Maximum  limits. 
(g)   Action  by  appointing  or  superior  authority — 

Art.  46.  Approval  and  execution  of  sentence. 

Art.  47.  Powers  incident  to  power  to  approve. 

Art.  48.  Confirmation — when  required. 

Art.  49.  Powers  incident  to  power  to  confirm. 

Art.  50.  Mitigation  or  remission  of  sentences. 

Art.  51.  Suspension  of  sentences  of  dismissal  or  death. 

Art.  52.  Suspension  of  sentence  of  dishonorable  discharge. 

Art.  53.  Suspension  of  sentences  of  forfeiture  or  confinement. 

III.  Punitive  Articles  : 

(a)  Enlistment;  muster;  returns — 

Art.  54.  Fraudulent  enlistment. 

Art.  55.  Officer  making  unlawful  enlistment. 

Art.  56.  Muster  rolls — false  muster. 

Art.  57.  False  returns — omission  to  render  returns. 
(&)   Desertion;  absence  without  leave — 

Art.  58.  Desertion. 

Art.  59.  Advising  or  aiding  another  to  desert. 

Art.  60.  Entertaining  a  deserter. 

Art.  61.  Absence  without  leave. 

(c)  Disrespect;  insubordvnation ;  mutiny — 

Art.  62.  Disrespect  toward  the  President,  Vice  President,  Congress, 

Secretary  of  War,  governors,  legislatures. 
Art.  63.  Disrespect  toward  superior  oflJcers. 
Art.  64.  Assaulting  or  willfully  disobeying  superior  officer. 
Art.  65.  Insubordinate  conduct  toward  noncommissioned  officer. 
Art.  66.  Mutiny  or  sedition. 
Art.  67.  Failure  to  suppress  mutiny  or  sedition. 
Art.  68.  Quarrels ;  frays ;  disorders. 

(d)  Arrest;  confinement — 

Art.  69.  Arrest  or  confinement  of  accused  persons. 
Art.  70.  Investigation  of  and  action  upon  charges. 
Art.  71.  Refusal  to  receive  and  keep  prisoners. 
Art.  72.  Report  of  prisoners  received. 
Art.  73.  Releasing  prisoner  without  proper  autliority. 
Art.  74.  Delivery  of  offenders  to  civil  authorities. 

(e)  War  offenses — 

Art.  75.  Misbehavior  before  the  enemy. 

Art.  76.  Subordinates  compelling  commander  to  surrender. 


APPENDICES.  307 

III  Punitive  Articles — Continued, 
(e)   War  offenses — Continued. 

Art.  77.  Improper  use  of  countersign. 

Art.  78.  Forcing  a  safeguard. 

Art.  79.  Captured  property  to  be  secured  for  public  service. 

Art.  80.  Dealing  in  captured  or  abandoned  property. 

Art.  81.  Believing,  corresponding  with,  or  aiding  the  enemy. 

Art.  82.  Spies. 
(/)  Miscellaneous  crimes  and  offenses — 

Art.  83.  Military    property — willful    or    negligent    loss,    damage,    or 
wrongful  disposition  of. 

Art.  84.  Waste  or  unlawful  disposition  of  military  property  issued  to 
soldiers. 

Art.  85.  Drunk  on  duty. 

Art.  86.  Misbehavior  of  sentinel. 

Art.  87.  Personal  interest  in  sale  of  provisions. 

Art.  88.  Intimidation  of  persons  bringing  provisions. 

Art.  89.  Good  order  to  be  maintained  and  wrongs  redressed. 

Art.  90.  Provoking  speeches  or  gestures. 

Art.  91.  Dueling. 

Art.  92.  Murder — rape. 

Art.  93.  Various  crimes. 

Art.  94.  Frauds  against  the  Government. 

Art.  95.  Conduct  unbecoming  an  officer  and  gentleman. 

Art.  96.  General  article. 

IV.  CouBTS  OF  Inquiby: 

Art.  97.  When  and  by  whom  ordered. 

Art.  98.  Composition. 

Art.  99.  Challenges. 

Art.  100.  Oath  of  members  and  recorder. 

Art.  101.  Powers ;  procedure. 

Art.  102.  Opinion  on  merits  of  case. 

Art.  103.  Record  of  proceedings — how  authenticated. 

V.  Miscellaneous  Provisions  : 

Art.  104.  Disciplinary  powers  of  commanding  officers. 

Art.  105.  Injuries  to  person  or  property — redress  of. 

Art.  106.  Arrest  of  deserters  by  civil  officials. 

Art.  107.  Soldiers  to  make  good  time  lost. 

Art.  108.  Soldiers — separation  from  the  service. 

Are.  109.  Oath  of  enlistment. 

Art.  110.  Certain  articles  to  be  read  and  explained. 

Art.  111.  Copy  of  record  of  trial. 

Art.  112.  Effects  of  deceased  persons — disposition  of. 

Art.  113.  Inquests. 

Art.  114.  Authority  to  administer  oaths. 

Art.  115.  Appointment  of  reporters  and  interpreters. 

Art.  116.  Powers  of  assistant  judge  advocates. 

Art.  117.  Removal  of  civil  suits. 

Art.  118.  Officers — separation  from  service. 

Art.  119.  Rank  and  precedence  among  Regulars,  Militia,  and  Volun- 
teers. 

Art.  120.  Command  when  different  corps  or  commands  happen  to 
join. 

Art.  121.  Complaints  of  wrongs. 


308  MANUAL  FOE  COUETS-MABTIAL. 

Table  showing  numbers  of  old  articles  and  of  corresponding  new  articles. 

OLD  AND  NEW  CODES. 


Old 

New 

Old 

New 

Old 

New 

Old 

New 

number. 

number. 

number. 

number. 

number. 

number. 

number. 

number. 

1 

32 

61 

63 

2 

96 
97 

43 
42 

2 

'"'iog'iio' 

33 

61 

64 

2 

3 

55 

34 

61 

65 

69 

98 

41 

4 

108 

35 

61 

66 

69 

99 

118 

5 

56 

36 

67 

71 

100 

44 

6 

7 

56 
57 

37 
38 

!                 68 
69 

72 
73 

101 
102 

V1V85' 

46" 

8 

57 

39 

86 

70 

70 

103 

39 

9 

79 

40 

61 

71 

70 

104 

46 

10 

41 

75 

1  72 

g 

105 

48 
48 
48 

11 

42 

75 

1  73 

g 

106 
107 

12 

56' 

43 

76 

74 

11 

13 

56 

44 

77 

175 

5 

108 

48 

14 
15 

56 
83 

45 
46 

81 
81 

76 

77 

109 
111 

46 
51 

4* 

16 

84 

47 

58 

78 

4 

112 

50 

17 

84 

48 

107 

79 

16 

113 

35- 

18 

87 

49 

28 

181 

6,9,13 

114 

111 

19 

62 

50 

29,60 

182 

6,9,13 

115 

97 

20 

63 

51 

59 

183 

13,14 

116 

98 

21 
22 
23 

64 
66 
67 

52 
53 
54 

84 
85 
86 

'19 
19 
32 

117 
118 
119 

100 
101 
102 

89,' 165" 

24 

68 

55 

89,105 

87 

120 

103 

25 

90 

56 

88 

88 

is' 

121 

27 

26 

91 

57 

78 

89 

21 

122 

120 

27 

91 

58 

92,93 

90 

17 

124 

119 

28 

91 

59 

74 

91 

25 

125 

112 

29 

121 

60 

2,94 

92 

19 

126 

112 

30 

121 

61 

95 

93 

20,70 

127 

112 

31 

61 

62 

93,96 

95 

31 

128 

110 

1  Old  articles  72,  73,  75,  81,  82,  and  83  were  replaced  by  the  act  of  Mar.  2,  1913  (37 
Stat.,  723),  effective  July  1,  1913. 

[Note. — Except  as  otherwise  specified  herein  this  code  becomes  effective  on 
March  1,  1917.] 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled. 

*  4:  *  *  *  *  * 

Sec.  3.  That  section  thirteen  hundred  and  forty-two  of  the  Revised  Statutes 
of  the  United  States  be,  and  the  same  is  hereby,  amended  to  read  as  follows: 

"  Sec.  1342.  The  articles  included  in  this  section  shall  be  known  as  the  Ar- 
ticles of  War  and  shall  at  all  times  and  in  all  places  govern  the  armies  of  the 
United  States. 

"  I.  Preliminary  Provtsions. 

"Article  1.  Definitions. — The  following  words  when  used  in  these  articles 
shall  be  construed  in  the  sense  indicated  in  this  Article,  unless  the  context 
shows  that  a  different  sense  is  intended,  namely : 

"(a)  The  word  *  officer  '  shall  be  construed  to  refer  to  a  commissioned  officer ; 

"(b)  The  word  'soldier'  shall  be  construed  as  including  a  noncommissioned 
officer,  a  private,  or  any  other  enlisted  man ; 

"(c)  The  word  'company'  shall  be  understood  as  including  a  troop  or  bat- 
tery; and 

"(d)  The  word  *  battalion  '  shall  be  understood  as  including  a  squadron. 

"Art.  2.  Persons  subject  to  military  law. — The  following  persons  are  sub- 
ject to  these  articles  and  shall  be  understood  as  included  in  the  term  '  any  per- 
son subject  to  military  law,'  or  '  persons  subject  to  military  law,'  whenever  used 
in  these  articles :  Provided,  That  nothing  contained  in  this  Act,  except  as  specifl- 


APPENDICES.  309 

cally  provided  in  Article  two,  subparagraph  (e),  shall  be  construed  to  apply  to 
any  person  under  the  United  States  naval  jurisdiction,  unless  otherwise  specifi- 
cally provided  by  law. 

"(a)  All  officers  and  soldiers  belonging  to  the  Regular  Army  of  the  United 
States;  all  volunteers,  from  the  dates  of  their  muster  or  acceptance  into  the 
military  service  of  the  United  States;  and  all  other  persons  lawfully  called, 
drafted  or  brdered  into,  or  to  duty  or  for  training  in,  the  said  service,  from  the 
dates  they  are  required  by  the  terms  of  the  call,  draft  or  order  to  obey  the  same ; 

"(b)   Cadets; 

"(c)  Officers  and  soldiers  of  the  Marine  Corps  when  detached  for  service  with 
the  armies  of  the  United  States  by  order  of  the  President:  Provided,  That  an 
officer  or  soldier  of  the  Marine  Corps  when  so  detached  may  be  tried  by  military 
court-martial  for  an  offense  committed  against  the  laws  for  the  government  of 
the  naval  service  prior  to  his  detachment,  and  for  an  offense  committed  against 
these  articles  he  may  be  tried  by  a  naval  court-martial  after  such  detachment 
ceases ; 

"(d)  All  retainers  to  the  camp  and  all  persons  accompanying  or  serving  with 
the  armies  of  the  United  States  without  the  territorial  jurisdiction  of  the 
United  States,  and  in  time  of  war  all  such  retainers  and  persons  accompanying 
or  serving  with  the  armies  of  the  United  States  in  the  field,  both  within  and 
without  the  territorial  jurisdiction  of  the  United  States,  though  not  otherwise 
subject  to  these  articles; 

"(e)  All  persons  under  sentence  adjudged  by  courts-martial; 

"(f)  All  persons  admitted  into  the  Regular  Army  Soldiers'  Home  at  Washing- 
ton, District  of  Columbia. 

"  II.    COUBTS-MABTIAL. 

"Art.  3.  Couets-maetial  classified. — Courts-martial  shall  be  of  three  kinds, 
namely : 

"  First,  general  courts-martial ; 

"  Second,  special  courts-martial ;  and 

"Third,  summary  courts-martial. 

"a.  composition. 

"Aet.  4.  Who  may  sebve  on  couets-martial. — ^All  officers  in  the  military 
service  of  the  United  States,  and  officers  of  the  Marine  Corps  when  detached  for 
service  with  the  Army  by  order  of  the  President,  shall  be  competent  to  serve  on 
courts-martial  for  the  trial  of  any  persons  who  may  lawfully  be  brought  before 
such  courts  for  trial. 

[Note. — This  article  became  effective  on  August  29,  1916.] 

"Art.  5.  Geneeal  courts-maetiax. — General  courts-martial  may  consist  of  any 
number  of  officers  from  five  to  thirteen,  inclusive ;  but  they  shall  not  consist  of 
less  than  thirteen,  when  that  number  can  be  convened  without  manifest  injury 
to  the  service. 

"Aet.  6.  Special  couets-martial. — Special  courts-martial  may  consist  of  any 
number  of  officers  from  three  to  five,  inclusive. 

"Aet.  7.  Summary  couets-maetial. — ^A  summary  court-martial  shall  consist 
of  one  officer. 

"b.  by  whom  appointed. 

"Art.  8.  General  courts-maetial. — The  President  of  the  United  States,  the 
commanding  officer  of  a  territorial  division  or  department,  the  Superintendent 
of  the  Military  Academy,  the  commanding  officer  of  an  army,  an  army  corps,  a 


310  MANUAL   FOR   COURTS-MARTIAL. 

division,  or  a  separate  brigade,  and,  when  empowered  by  tlie  President,  the  com- 
manding officer  of  any  district  or  of  any  force  or  body  of  troops  may  appoint 
general  courts-martial ;  but  when  any  such  commander  is  the  accuser  or  the 
prosecutor  of  the  person  or  persons  to  be  tried,  the  court  shall  be  appointed  by 
superior  competent  authority,  and  no  officer  shall  be  eligible  to  sit  as  a  member 
of  such  court  when  he  is  the  accuser  or  a  witness  for  the  prosecution. 

"Aet.  9.  Special  couets-maktial. — The  commanding  officer  of  a  district,  gar- 
rison, fort,  camp,  or  other  place  where  troops  are  on  duty,  and  the  commanding 
officer  of  a  brigade,  regiment,  detached  battalion,  or  other  detached  command 
may  appoint  special  courts-martial ;  but  when  any  such  commanding  officer  is 
the  accuser  or  the  prosecutor  of  the  person  or  persons  to  be  tried,  the  court 
shall  be  appointed  by  superior  authority,  and  may  in  any  case  be  appointed  by 
superior  authority  when  by  the  latter  deemed  desirable ;  and  no  officer  shall  be 
eligible  to  sit  as  a  member  of  such  court  when  he  is  the  accuser  or  a  witness  for 
the  prosecution. 

"Aet.  10.  SuMMAEY  couets-maetial. — The  commanding  officer  of  a  garrison, 
fort,  camp,  or  other  place  where  troops  are  on  duty,  and  the  commanding  officer 
of  a  regiment,  detached  battalion,  detached  company,  or  other  detachment  may 
appoint  summary  courts-martial ;  but  such  summary  courts-martial  may  in  any 
case  be  appointed  by  superior  authority  when  by  the  latter  deemed  desirable: 
Provided,  That  when  but  one  officer  is  present  with  a  command  he  shall  be  the 
summary  court-martial  of  that  command  and  shall  hear  and  determine  cases 
brought  before  him. 

"Aet.  11.  Appointment  of  judge  advocates. — For  each  general  or  special 
court-martial  the  authority  appointing  the  court  shall  appoint  a  judge  advocate, 
and  for  each  general  court-martial  one  or  more  assistant  judge  advocates  when 
necessary. 

"C.     JUEISDICTION. 

"Aet.  12.  Genebal  couets-maetial. — General  courts-martial  shall  have  power 
to  try  any  person  subject  to  military  law  for  any  crime  or  offense  made  pun- 
ishable by  these  articles  and  any  other  person  who  by  the  law  of  war  is  subject 
to  trial  by  military  tribunals :  Provided,  That  no  officer  shall  be  brought  to  trial 
before  a  general  court-martial  appointed  by  the  Superintendent  of  the  Military 
Academy. 

"Aet.  13.  Special  couets-maetial. — Special  courts-martial  shall  have  power 
to  try  any  person  subject  to  military  law,  except  an  officer,  for  any  crime  or 
offense  not  capital  made  punishable  by  these  articles :  Provided,  That  the  Presi- 
dent may,  by  regulations,  which  he  may  modify  from  time  to  time,  except  from 
the  jurisdiction  of  special  courts-martial  any  class  or  classes  of  persons  subject 
to  military  law. 

"  Special  courts-martial  shall  not  have  power  to  adjudge  dishonorable  dis- 
charge, nor  confinement  in  excess  of  six  months,  nor  to  adjudge  forfeiture  of 
more  than  six  months'  pay. 

[Note. — This  article  became  effective  on  August  29,  1916.] 

"Aet.  14.  Summaey  couets-maetial. — Summary  courts-martial  shall  have 
power  to  try  any  person  subject  to  military  law,  except  an  officer,  a  cadet,  or  a 
soldier  holding  the  privileges  of  a  certificate  of  eligibility  to  promotion,  for  any 
crime  or  offense  not  capital  made  punishable  by  these  articles :  Provided,  That 
noncommissioned  officers  shall  not,  if  they  object  thereto,  be  brought  to  trial 
before  a  summary  court-martial  without  the  authority  of  the  officer  competent 
to  bring  them  to  trial  before  a  general  court-martial:  Provided  further,  That 
the  President  may,  by  regulations,  which  he  may  modify  from  time  to  time,  ex- 


APPENDICES.  311 

cept  from  the  jurisdiction  of  summary  courts-martial  any  class  or  classes  of 
persons  subject  to  military  law. 

"  Summary  courts-martial  shall  not  have  power  to  adjudge  conJBnement  in 
excess  of  three  months,  nor  to  adjudge  the  forfeiture  of  more  than  three  months* 
pay :  Provided,  That  when  the  summary  court  officer  is  also  the  commanding  officer 
no  sentence  of  such  summary  court-martial  adjudging  confinement  at  hard  labor 
or  forfeiture  of  pay,  or  both,  for  a  period  in  excess  of  one  month  shall  be  carried 
into  executioii  until  the  same  shall  have  been  approved  by  superior  authority. 

[Note. — This  aTticle  became  effective  on  August  29,  1916.] 

"Art.  15.  Not  exclusive. — The  provisions  of  these  articles  conferring  jurisdic- 
tion upon  courts-martial  shall  not  be  construed  as  depriving  military  com- 
missions, provost  courts,  or  other  military  tribunals  of  concurrent  jurisdiction  in 
respect  of  offenders  or  offenses  that  by  the  law  of  war  may  be  lawfully  triable 
by  such  military  commissions,  provost  courts,  or  other  military  tribunals. 

[Note. — This  article  became  effective  on  August  29,  1916.] 

"Art.  16.  Officers;  how  triable. — Officers  shall  be  triable  only  by  general 
courts-martial,  and  in  no  case  shall  an  officer,  when  it  can  be  avoided,  be  tried 
by  officers  inferior  to  him  in  rank. 

"  D.   PROCEDURE. 

"Art.  17.  Judge  advocate  to  prosecute. — The  judge  advocate  of  a  general  or 
special  court-martial  shall  prosecute  in  the  name  of  the  United  States,  and  shall, 
under  the  direction  of  the  court,  prepare  the  record  of  its  proceedings.  The 
accused  shall  have  the  right  to  be  represented  before  the  court  by  counsel  of  hia 
own  selection  for  his  defense,  if  such  counsel  be  reasonably  available,  but  should 
he,  for  any  reason,  be  unrepresented  by  counsel,  the  judge  advocate  shall  from 
time  to  time  throughout  the  proceedings  advise  the  accused  of  his  legal  rights. 

"Art.  18.  Challenges. — Members  of  a  general  or  special  court-martial  may 
be  challenged  by  the  accused,  but  only  for  cause  stated  to  the  court.  The 
court  shall  determine  the  relevancy  and  validity  thereof,  and  shall  not  receive 
a  challenge  to  more  than  one  member  at  a  time. 

"Art.  19.  Oaths. — The  judge  advocate  of  a  general  or  special  court-martial 
shall  administer  to  the  members  of  the  court,  before  they  proceed  upon  any 
trial,  the  following  oath  or  affirmation:  'You,  A.  B.,  do  swear  (or  affirm)  that 
you  will  well  and  truly  try  and  determine,  according  to  the  evidence,  the  matter 
now  before  you,  between  the  United  States  of  America  and  the  person  to  be 
tried,  and  that  you  will  duly  administer  justice,  without  partiality,  favor,  or 
affection,  according  to  the  provisions  of  the  rules  and  articles  for  the  govern- 
ment of  the  armies  of  the  United  States,  and  if  any  doubt  should  arise,  not  ex- 
plained by  said  articles,  then  according  to  your  conscience,  the  best  of  your  un- 
derstanding, and  the  custom  of  war  in  like  cases;  and  you  do  further  swear 
(or  affirm)  that  you  will  not  divulge  the  findings  or  sentence  of  the  court  until 
they  shall  be  published  by  the  proper  authority,  except  to  the  judge  advocate 
and  assistant  judge  advocate ;  neither  will  you  disclose  or  discover  the  vote  or 
opinion  of  any  particular  member  of  the  court-martial,  unless  required  to  give 
evidence  thereof  as  a  witness  by  a  court  of  justice  in  due  course  of  law.  So 
help  you  God.' 

"  When  the  oath  or  affirmation  has  been  administered  to  the  members  of  a 
general  or  special  court-martial,  the  president  of  the  court  shall  administer  to 
the  judge  advocate  and  to  each  assistant  judge  advocate,  if  any,  an  oath  or 
affirmation  in  the  following  form:  'You,  A.  B.,  do  swear  (or  affirm)  that  you 


312  MANUAL  FOR  COURTS-MABTIAL. 

Will  not  divulge  the  findings  or  sentence  of  tlie  court  to  any  but  tlie  proper  au- 
thority until  they  shall  be  duly  disclosed  by  the  same.    So  help  you  God.' 

"  All  persons  who  give  evidence  before  a  court-martial  shall  be  examined  on 
oath  or  affirmation  in  the  following  form:  'You  swear  (or  affirm)  that  the 
evidence  you  shall  give  in  the  case  now  in  hearing  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth.    So  help  you  God.' 

"Every  reporter  of  the  proceedings  of  a  court-martial  shall,  before  entering 
upon  his  duties,  make  oath  or  affirmation  in  the  following  form :  'You  swear 
(or  affirm)  that  you  will  faithfully  perform  the  duties  of  reporter  to  this 
court.     So  help  you  God.' 

'*  Every  interpreter  in  the  trial  of  any  case  before  a  court-martial  shall,  be- 
fore entering  upon  his  duties,  make  oath  or  affirmation  in  the  following  form: 
*You  swear  (or  affirm)  that  you  will  truly  interpret  in  the  case  now  in  hear- 
ing.   So  help  you  God.' 

"  In  case  of  affirmation  the  closing  sentence  of  adjuration  will  be  omitted. 

"Abt.  20.  Continuances. — ^A  court-martial  may,  for  reasonable  cause,  grant 
a  continuance  to  either  party  for  such  time  and  as  often  as  may  appear  to  be 
just. 

"Art.  21.  Refusal  to  plead. — When  the  accused,  arraigned  before  a  court- 
martial,  from  obstinacy  and  deliberate  design  stands  mute  or  answers  foreign 
to  the  purpose,  the  court  may  proceed  to  trial  and  judgment  as  if  he  had  pleaded 
not  guilty. 

"Aet.  22.  Pbocess  to  obtain  witnesses. — Every  judge  advocate  of  a  general 
or  special  court-martial  and  every  summary  court-martial  shall  have  power  to 
issue  the  like  process  to  compel  witnesses  to  appear  and  testify  which  courts 
of  the  United  States,  having  criminal  jurisdiction,  may  lawfully  issue ;  but  such 
process  shall  run  to  any  part  of  the  United  States,  its  Territories,  and  posses- 
sions. 

"Art.  23.  Refusal  to  appear  or  testify. — Every  person  not  subject  to  mili- 
tary law  who,  being  duly  subpoenaed  to  appear  as  a  witness  before  any  military 
court,  commission,  court  of  inquiry,  or  board,  or  before  any  officer,  military  or 
civil,  designated  to  take  a  deposition  to  be  read  in  evidence  before  such  court, 
commission,  court  of  inquiry,  or  board,  willfully  neglects  or  refuses  to  appear, 
or  refuses  to  qualify  as  a  witness,  or  to  testify,  or  produce  documentary  evi- 
dence which  such  person  may  have  been  legally  subpoenaed  to  produce,  shall 
be  deemed  guilty  of  a  misdemeanor,  for  which  such  person  shall  be  punished 
on  information  in  the  district  court  of  the  United  States  or  in  a  court  of  original 
criminal  jurisdiction  in  any  of  the  territorial  possessions  of  the  United  States,  jur- 
isdiction being  hereby  conferred  upon  such  courts  for  such  purpose ;  and  it  shall 
be  the  duty  of  the  United  States  district  attorney  or  the  officer  prosecuting  for 
the  Government  in  any  such  court  of  original  criminal  jurisdicton,  on  the  certi- 
fication of  the  facts  to  him  by  the  military  court,  commission,  court  of  inquiry, 
or  board,  to  file  an  information  against  and  prosecute  the  person  so  offending,  and 
the  punishment  of  such  person,  on  conviction,  shall  be  a  fine  of  not  more  than 
$500  or  imprisonment  not  to  exceed  six  pjonths,  or  both,  at  the  discretion  of 
the  court:  Provided,  That  the  fees  of  such  witness  and  his  mileage,  at  the 
rates  allowed  to  witnesses  attending  the  courts  of  the  United  States,  shall  be 
duly  paid  or  tendered  said  witness,  such  amounts  to  be  paid  out  of  the  appro- 
priation for  the  compensation  of  witnesses. 

"Art,  24.  Compulsory  self-incrimination  prohibited. — ^No  witness  before  a 
military  court,  commission,  court  of  inquiry,  or  board,  or  before  any  officer, 
military  or  civil,  designated  to  take  a  deposition  to  be  read  in  evidence  before  a 
military  court,  commission,  court  of  inquiry,  or  board,  shall  be  compelled  to 


APPENDICES.  313 

Incriminate  himself  or  to  answer  any  questions  which  may  tend  to  incriminate 
or  degrade  him. 

"Akt.  25. — Depositions — When  admissible. — ^A  duly  authenticated  deposition 
taken  upon  reasonable  notice  to  the  opposite  party  may  be  read  in  evidence  be- 
fore any  military  court  or  commission  in  any  case  not  capital,  or  in  any  pro- 
ceeding before  a  court  of  inquiry  or  a  military  board,  if  such  deposition  be  taken 
when  the  witness  resides,  is  found,  or  is  about  to  go  beyond  the  State,  Territory, 
or  District  in  which  the  court,  commission,  or  board  is  ordered  to  sit,  or  beyond 
the  distance  of  one  hundred  miles  from  the  place  of  trial  or  hearing,  or  when  it 
appears  to  the  satisfaction  of  the  court,  commission,  board,  or  appointing  au- 
thority that  the  witness,  by  reason  of  age,  sickness,  bodily  infirmity,  imprison- 
ment, or  other  reasonable  cause,  is  unable  to  appear  and  testify  in  person  at 
the  place  of  trial  or  hearing:  Provided,  That  testimony  by  deposition  may  be 
adduced  for  the  defense  in  capital  cases. 

"Art.  26.  Depositions — Before  whom  taken. — Depositions  to  be  read  in  evi- 
dence before  military  courts,  commissions,  courts  of  inquiry,  or  military  boards, 
or  for  other  use  in  military  administration,  may  be  taken  before  and  authenti- 
cated by  any  officer,  military  or  civil,  authorized  by  the  laws  of  the  United 
States  or  by  the  laws  of  the  place  where  the  deposition  is  taken  to  administer 
oaths. 

"Art.  27.  Courts  of  inquiry — Records  of,  when  admissible. — The  record  of 
the  proceedings  of  a  court  of  inquiry  may  be  read  in  evidence  before  any  court- 
martial  or  military  commission  in  any  case  not  capital  nor  extending  to  the  dis- 
missal of  an  officer,  and  may  also  be  read  in  evidence  in  any  proceeding  before 
a  court  of  inquiry  or  a  military  board:  Provided,  That  such  evidence  may  be 
adduced  by  the  defense  in  capital  cases  or  cases  extending  to  the  dismissal  of 
an  officer. 

"Art.  28.  Resignation  without  acceptance  does  not  release  officer. — ^Any 
officer  who,  having  tendered  his  resignation  and  prior  to  due  notice  of  the 
acceptance  of  the  same,  quits  his  post  or  proper  duties  without  leave  and  with 
intent  to  absent  himself  permanently  therefrom  shall  be  deemed  a  deserter. 

"Art.  29.  Enlistment  without  discharge. — Any  soldier  who,, without  having 
first  received  a  regular  discharge,  again  enlists  in  the  Army,  on  in  the  militia 
when  in  the  service  of  the  United  States,  or  in  the  Navy  or  Marine  Corps  of  the 
United  States,  or  in  any  foreign  army,  shall  be  deemed  to  have  d^erted  the 
service  of  the  United  States ;  and,  where  the  enlistment  is  in  one  of  the  forces 
of  the  United  States  mentioned  above,  to  have  fraudulently  enlisted  therein. 

[Note. — This  article  became  effective  on  August  29,  1916.] 

"Art.  30.  Closed  sessions. — Whenever  a  general  or  special  court-martial  shall 
sit  in  closed  session,  the  judge  advocate  and  the  assistant  judge  advocate,  if  any, 
shall  withdraw ;  and  when  their  legal  advice  or  their  assistance  in  referring  to 
the  recorded  evidence  is  required,  it  shall  be  obtained  in  open  court  and  in  the 
presence  of  the  accused  and  of  his  counsel  if  there  be  any. 

"Art.  31.  Order  of  voting. — Members  of  a  general  or  special  court-martial,  in 
giving  their  votes,  shall  begin  with  the  junior  in  rank. 

"Art.  32.  Contempts. — ^A  court-martial  may  punish  at  discretion,  subject  to 
the  limitations  contained  in  Article  fourteen,  any  person  who  uses  any  menacing 
words,  signs,  or  gestures  in  its  presence,  or  who  disturbs  its  proceedings  by  any 
riot  or  disorder. 

"Art.  33.  Records — General  courts-martial. — Each  general  court-martial 
shall  keep  a  separate  record  of  its  proceedings  in  the  trial  of  each  case  brought 
before  it,  and  such  record  shall  be  authenticated  by  the  signature  of  the  presi- 
dent and  the  judge  advocate;  but  in  case  the  record  can  not  be  authenticated 


314  MANUAL  FOR  COURTS- MARTIAL. 

by  the  judge  advocate,  by  reason  of  his  death,  disability,  or  absence,  it  shall  be 
signed  by  the  president  and  an  assistant  judge  advocate,  if  any;  and  if  there 
be  no  assistant  judge  advocate,  or  in  case  of  his  death,  disability,  or  absence, 
then  by  the  president  and  one  other  member  of  the  court. 

"Abt.  34.  Records — Special  and  summary  courts-martial. — Each  special 
court-martial  and  each  summary  court-martial  shall  keep  a  record  of  its  proceed- 
ings, separate  for  each  case,  which  record  shall  contain  such  matter  and  be 
authenticated  in  such  manner  as  may  be  required  by  regulations  which  the 
President  may  from  time  to  time  prescribe. 

"AnT.  35.  Disposition  of  records — General  coubts-martial. — ^The  judge  advo- 
cate of  each  general  court-martial  shall,  with  such  expedition  as  circumstances 
may  permit,  forward  to  the  appointing  authority  or  to  his  successor  in  com- 
mand the  original  record  of  the  proceedings  of  such  court  in  the  trial  of  each 
case.  All  records  of  such  proceedings  shall,  after  having  been  finally  acted 
upon,  be  transmitted  to  the  Judge  Advocate  General  of  the  Army. 

"AnT.  36.  Disposition  of  records — Special  and  summary  courts-martial. — 
After  having  been  acted  upon  by  the  officer  appointing  the  court,  or  by  the  officer 
commanding  for  the  time  being,  the  record  of  each  trial  by  special  court-martial 
and  a  report  of  each  trial  by  summary  court-martial  shall  be  transmitted  to 
such  general  readquarters  as  the  President  may  designate  in  regulations,  there 
to  be  filed  in  the  office  of  the  judge  advocate.  When  no  longer  of  use,  records 
of  special  and  summary  courts-martial  may  be  destroyed. 

"Art.  37.  Irregularities — Effect  of. — The  proceedings  of  a  court-martial 
shall  not  be  held  invalid,  nor  the  findings  or  sentence  disapproved,  in  any  case 
on  the  ground  of  improper  admission  or  rejection  of  evidence  or  for  any  error 
as  to  any  matter  of  pleading  or  procedure  unless  in  the  opinion  of  the  reviewing 
or  confirming  authority,  after  an  examination  of  the  entire  proceedings,  it 
shall  appear  that  the  error  complained  of  has  injuriously  affected  the  substan- 
tial rights  of  an  accused:  Provided,  That  the  act  or  omission  upon  which  the 
accused  has  been  tried  constitutes  an  offense  denounced  and  made  punishable 
by  one  or  more  of  these  articles:  Provided  further,  That  the  omission  of  the 
words  *  hard  l»bor '  in  any  sentence  of  a  court-martial  adjudging  imprisonment 
or  confinement' shall  not  be  construed  as  depriving  the  authorities  executing 
such  sentence  of  imprisonment  or  confinement  of  the  power  to  require  hard 
labor  as  a  part  of  the  punishment  in  any  case  where  it  is  authorized  by  the 
Executive  order  prescribing  maximum  punishments. 

"Art.  38.  President  may  prescribe  rules. — The  President  may  by  regula- 
tions, which  he  may  modify  from  time  to  time,  prescribe  the  procedure,  includ- 
ing modes  of  proof,  in  cases  before  courts-martial,  courts  of  inquiry,  military 
commissions,  and  other  military  tribunals :  Provided,  That  nothing  contrary  to 
or  inconsistent  with  these  articles  shall  be  so  prescribed:  Provided  further. 
That  all  rules  made  in  pursuance  of  this  article  shall  be  laid  before  the  Congress 
annually. 

"  E.  limitations  upon  prosecutions. 

"Art.  39.  As  to  time. — Except  for  desertion  committed  in  time  of  war,  or 
for  mutiny  or  murder,  no  person  subject  to  military  law  shall  be  liable  to  be 
tried  or  punished  by  a  court-martial  for  any  crime  or  offense  committed  more 
than  two  years  before  the  arraignment  of  such  person:  Provided,  That  for  de- 
sertion in  time  of  peace  or  for  any  crime  or  offense  punishable  under  articles 
ninety-three  and  ninety-four  of  this  code  the  period  of  limitations  upon  trial  and 
punishment  by  court-martial  shall  be  three  years:  Provided  further.  That  the 
period  of  any  absence  of  the  accused  from  the  jurisdiction  of  the  United  States, 


APPENDICES.  315 

and  also  any  period  during  whicli  by  reason  of  some  manifest  impediment  tiie 
accused  sliall  not  liave  been  amenable  to  military  justice,  shall  be  excluded  in 
computing  the  aforesaid  periods  of  limitation :  And  provided  further,  That  this 
article  shall  not  have  the  effect  to  authorize  the  trial  or  punishment  for  any 
crime  or  offense  barred  by  the  provisions  of  existing  law, 

"Abt.  40.  As  TO  NUMBEB. — No  persou  shall  be  tried  a  second  time  for  the  same 
offense. 

"  F.    PUNISHMENTS. 

"Abt.  41.  Cebtain  kinds  peohibited. — Punishment  by  flogging,  or  by  brand- 
ing, marking,  or  tattooing  on  the  body  is  prohibited. 

"Abt.  42.  Places  of  confinement — When  lawful. — Except  for  desertion  in 
time  of  war,  repeated  desertion  in  time  of  peace,  and  mutiny,  no  person  shall 
under  the  sentence  of  a  court-martial  be  punished  by  confinement  in  a  peni- 
tentiary unless  an  act  or  omission  of  which  he  is  convicted  is  recognized  as  an 
offense  of  a  civil  nature  by  some  statute  of  the  United  States,  or  at  the  common 
law  as  the  same  exists  in  the  District  of  Columbia,  or  by  way  of  commutation 
of  a  death  sentence,  and  unless,  also,  the  period  of  confinement  authorized  and 
adjudged  by  such  court-martial  is  one  year  or  more:  Provided,  That  when  a 
sentence  of  confinement  is  adjudged  by  a  court-martial  upon  conviction  of  two 
or  more  acts  or  omissions  any  one  of  which  is  punishable  under  these  articles 
by  confinement  in  a  penitentiary,  the  entire  sentence  of  confinement  may  be 
executed  in  a  penitentiary :  Provided  further.  That  penitentiary  confinement 
hereby  authorized  may  be  served  in  any  penitentiary  directly  or  indirectly 
under  the  jurisdiction  of  the  United  States:  Provided  further,  That  persons 
sentenced  to  dishonorable  discharge  and  to  confinement  not  in  a  penitentiary 
shall  be  confined  in  the  United  States  Disciplinary  Barracks  or  elsewhere  as 
the  Secretary  of  War  or  the  reviewing  authority  may  direct,  but  not  in  a 
penitentiary. 

"Abt.  43.  Death  sentence — When  lawful. — No  person  shall,  by  general 
court-martial,  be  convicted  of  an  offense  for  which  the  death  penalty  is  made 
mandatory  by  law,  nor  sentenced  to  suffer  death,  except  by  the  concurrence  of 
two-thirds  of  the  members  of  said  court-martial  and  for  an  offense  in  these 
articles  expressly  made  punishable  by  death.  All  other  convictions  and  sen- 
tences, whether  by  general  or  special  court-martial,  may  be  determined  by  a 
majority  of  the  members  present. 

"Abt.  44.  Cowabdice;  fbaud — Accessoby  penalty. — When  an  officer  is  dis- 
missed from  the  servce  for  cowardice  or  fraud,  the  crime,  punishment,  name, 
and  place  of  abode  of  the  delinquent  shall  be  published  in  the  newspapers  in 
and  about  the  camp  and  in  the  State  from  which  the  offender  came  or  where 
he  usually  resides;  and  after  such  publication  it  shall  be  scandalous  for  an 
officer  to  associate  with  him. 

"Abt.  45.  Maximum  limits. — Whenever  the  punishment  for  a  crime  or  offense 
made  punishable  by  these  articles  is  left  to  the  discretion  of  the  court-martial, 
the  punishment  shall  not,  in  time  of  peace,  exceed  such  limit  or  limits  as  the 
President  may  from  time  to  time  prescribe. 

"  G.    ACTION    BY    APPOINTING    OB    SUPEBIOB    AUTHOEITY. 

"Abt.  46.  Appboval  and  execution  of  sentence. — No  sentence  of  a  court- 
martial  shall  be  carried  into  execution  until  the  same  shall  have  been  approved 
by  the  officer  appointing  the  court  or  by  the  officer  commanding  for  the  time 
being. 


316  MANUAL  FOR  COURTS-MARTIAL. 

"Aet.  47.  PowEEs  INCIDENT  TO  POWER  TO  APPROVE. — Tlie  power  to  approve  the 
sentence  of  a  court-martial  shall  be  held  to  include : 

"(a)  The  power  to  approve  or  disapprove  a  finding  and  to  approve  only  so 
much  of  a  finding  of  guilty  of  a  particular  offense  as  involves  a  finding  of 
guilty  of  a  lesser  included  offense  when,  in  the  opinion  of  the  authority  having 
power  to  approve,  the  evidence  of  record  requires  a  finding  of  only  the  lesser 
degree  of  guilt ;  and 

"(b)  The  power  to  approve  or  disapprove  the  whole  or  any  part  of  the 
sentence. 

[Note. — This  article  became  effective  on  August  29,  1916.] 

"Art.  48.  CJonfibmation — When  required. — In  addition  to  the  approval  re- 
quired by  article  forty-six,  confirmation  by  the  President  is  required  in  the 
following  cases  before  the  sentence  of  a  court-martial  is  carried  into  execution, 
namely : 

"(a)  Any  sentence  respecting  a  general  officer; 

"(b)  Any  sentence  extending  to  the  dismissal  of  an  officer,  except  that  in 
time  of  war  a  sentence  extending  to  the  dismissal  of  an  officer  below  the  grade 
of  brigadier  general  may  be  carried  into  execution  upon  confirmation  by  the 
commanding  general  of  the  Army  in  the  field  or  by  the  commanding  general  of 
the  territorial  department  or  division; 

"(c)  Any  sentence  extending  to  the  suspension  or  dismissal  of  a  cadet;  and 

"(d)  Any  sentence  of  death,  except  in  the  cases  of  persons  convicted  in  time 
of  war  of  murder,  rape,  mutiny,  desertion,  or  as  spies;  and  in  such  excepted 
cases  a  sentence  of  death  may  be  carried  into  execution  upon  confirmation  by 
the  commanding  general  of  the  Army  in  the  field  or  by  the  commanding  general 
of  the  territorial  department  or  division. 

"  When  the  authority  competent  to  confirm  the  sentence  has  already  acted  as 
the  approving  authority  no  additional  confirmation  by  him  is  necessary. 

"Art.  49.  Powers  incident  to  power  to  confirm. — The  power  to  confirm  the 
sentence  of  a  court-martial  shall  be  held  to  include : 

"(a)  The  power  to  confirm  or  disapprove  a  finding,  and  to  confirm  so  much 
only  of  a  finding  of  guilty  of  a  particular  offense  as  involves  a  finding  of  guilty 
of  a  lesser  included  offense  when,  in  the  opinion  of  the  authority  having  power 
to  confirm,  the  evidence  of  record  requires  a  finding  of  only  the  lesser  degree 
of  guilt;  and 

"(b)  The  power  to  confirm  or  disapprove  the  whole  or  any  part  of  the  sen- 
tence. 

[Note. — This  article  became  effective  on  August  29,  1916.] 

"Art.  50.  Mitigation  or  remission  of  sentences. — ^The  power  to  order  the 
execution  of  the  sentence  adjudged  by  a  court-martial  shall  be  held  to  include, 
inter  alia,  the  power  to  mitigate  or  remit  the  whole  or  any  part  of  the  sentence, 
but  no  sentence  of  dismissal  of  an  officer  and  no  sentence  of  death  shall  be 
mitigated  or  remitted  by  any  authority  inferior  to  the  President. 

"Any  unexecuted  portion  of  a  sentence  adjudged  by  a  court-martial  may  be 
mitigated  or  remitted  by  the  military  authority  competent  to  appoint,  for  the 
command,  exclusive  of  penitentiaries  and  the  United  States  Disciplinary  Bar- 
racks, in  which  the  person  under  sentence  is  held,  a  court  of  the  kind  that  im- 
posed the  sentence,  and  the  same  power  may  be  exercised  by  superior  military 
authority ;  but  no  sentence  extending  to  the  dismissal  of  an  officer  or  loss  of 
files,  no  sentence  of  death,  and  no  sentence  approved  or  confirmed  by  the  Presi- 
dent shall  be  remitted  or  mitigated  by  any  other  authority. 

"  The  power  of  remission  and  mitigation  shall  extend  to  all  uncollected  for- 
feitures adjudged  by  sentence  of  a  court-martial. 


APPENDICES.  317 

"Art.  51.  Suspension  of  sentences  of  dismissai.  or  death. — ^The  authority 
competent  to  order  the  execution  of  a  sentence  of  dismissal  of  an  officer  or  a 
sentence  of  death  may  suspend  such  sentence  until  the  pleasure  of  the  President 
be  known,  and  in  case  of  such  suspension  a  copy  of  the  order  of  suspension, 
together  with  a  copy  of  the  record  of  trial,  shall  immediately  be  transmitted 
to  the  President. 

"Art.  52.  Suspension  of  sentence  of  dishonorable  discharge. — The  author- 
ity competent  to  order  the  execution  of  a  sentence,  including  dishonorable  dis- 
charge, may  suspend  the  execution  of  the  dishonorable  discharge  until  the  sol- 
dier's release  from  confinement;  but  the  order  of  suspension  may  be  vacated 
at  any  time  and  the  execution  of  the  dishonorable  discharge  directed  by  the 
officer  having  general  court-martial  jurisdiction  over  the  command,  exclusive 
of  penitentiaries  and  the  United  States  Disciplinary  Barracks,  in  which  the 
soldier  is  held  or  by  the  Secretary  of  War. 

"Art.  53.  Suspension  of  sentences  of  forfeiture  or  confinement. — The  au- 
thority competent  to  order  the  execution  of  a  sentence  adjudged  by  a  court- 
martial  may,  if  the  sentence  involve  neither  dismissal  nor  dishonorable  dis- 
charge, suspend  the  execution  of  the  sentence  in  so  far  as  it  relates  to  the  for- 
feiture of  pay  or  to  confinement,  or  to  both;  and  the  person  under  sentence 
may  be  restored  to  duty  during  the  suspension  of  confinement.  At  any  time 
within  one  year  after  the  date  of  the  order  of  suspension  such  order  may,  for 
sufficient  cause,  be  vacated  and  the  execution  of  the  sentence  directed  by  the 
military  authority  competent  to  order  the  execution  of  like  sentences  in  the 
command,  exclusive  of  penitentiaries  and  the  United  States  Disciplinary  Bar- 
racks, to  which  the  person  under  sentence  belongs  or  in  which  he  may  be  found ; 
but  if  the  order  of  suspension  be  not  vacated  within  one  year  after  the  date 
thereof  the  suspended  sentence  shall  be  held  to  have  been  remitted. 

"  III.  Punitive  Articles. 

"a,  enlistment;  muster;  returns. 

"Art.  54.  Fbaudulent  enlistment. — ^Any  person  who  shall  procure  himself 
to  be  enlisted  in  the  military  service  of  the  United  States  by  means  of  willful 
misrepresentation  or  concealment  as  to  his  qualifications  for  enlistment,  and 
shall  receive  pay  or  allowances  under  such  enlistment,  shall  be  punished  as  a 
court-martial  may  direct. 

"Art.  55.  Officer  making  unlawful  enlistment. — Any  officer  who  know- 
ingly enlists  or  musters  into  the  military  service  any  person  whose  enlistment 
or  muster  in  is  prohibited  by  law,  regulations,  or  orders  shall  be  dismissed 
from  the  service  or  suffer  such  other  punishment  as  a  court-martial  may  direct. 

"Art.  56.  Muster  bolls — False  muster. — ^At  every  muster  of  a  regiment, 
troop,  battery,  or  company  the  commanding  officer  thereof  shall  give  to  the 
mustering  officer  certificates,  signed  by  himself,  stating  how  long  absent  officers 
have  been  absent  and  the  reasons  of  their  absence.  And  the  commanding  officer 
of  every  troop,  battery,  or  company  shall  give  like  certificates,  stating  how  long 
absent  noncommissioned  officers  and  private  soldiers  have  been  absent  and 
the  reasons  of  their  absence.  Such  reasons  and  time  of  absence  shall  be  in- 
serted in  the  muster  rolls  opposite  the  names  of  the  respective  absent  officers 
and  soldiers,  and  the  certificates,  together  with  the  muster  rolls,  shall  be  trans- 
mitted by  the  mustering  officer  to  the  Department  of  War  as  speedily  as  the 
distance  of  the  place  and  muster  will  admit.  Any  officer  who  knowingly  makes 
a  false  muster  of  man  or  animal,  or  who  signs  or  directs  or  allows  the  signing 


318  MANUAL   FOR   COURTS-MARTIAL. 

of  any  muster  roll  knowing  tlie  same  to  contain  a  false  muster  or  false  state- 
ment as  to  the  absence  or  pay  of  an  officer  or  soldier,  or  who  wrongfully  takes 
money  or  other  consideration  on  mustering  in  a  regiment,  company,  or  other 
organization,  or  on  signing  muster  rolls,  or  who  knowingly  musters  as  an  officer 
or  soldier  a  person  who  is  not  such  officer  or  soldier,  shall  be  dismissed  from 
the  service  and  suffer  such  other  punishment  as  a  court-martial  may  direct. 

"Aet.  57.  False  returns — Omission  to  render  returns. — Every  officer  com- 
manding a  regiment,  an  independent  troop,  battery,  or  company,  or  a  garrison, 
shall,  in  the  beginning  of  every  month,  transmit  through  the  proper  channels, 
to  the  Department  of  War,  an  exact  return  of  the  same,  specifying  the  names 
of  the  officers  then  absent  from  their  posts,  with  the  reasons  for  and  the  time 
of  their  absence.  Every  officer  whose  duty  it  is  to  render  to  the  War  Depart- 
ment or  other  superior  authority  a  return  of  the  state  of  the  troops  under  his 
command,  or  of  the  arms,  ammunitions,  clothing,  funds,  or  other  property  there- 
unto belonging,  who  knowingly  makes  a  false  return  thereof  shall  be  dismissed 
from  the  service  and  suffer  such  other  punishment  as  a  court-martial  may 
direct.  And  any  officer  who,  through  neglect  or  design,  omits  to  render  such 
return  shall  be  punished  as  a  court-martial  may  direct. 

"  B.    DESERTION  ;    ABSENCE    WITHOUT   LEAVE. 

"Art.  58.  Desertion. — ^Any  person  subject  to  military  law  who  deserts  or 
attempts  to  desert  the  service  of  the  United  States  shall,  if  the  offense  be  com- 
mitted in  time  of  war,  suffer  death  or  such  other  punishment  as  a  court-martial 
may  direct,  and,  if  the  offense  be  committed  at  any  other  time,  any  punish- 
ment, excepting  death,  that  a  court-martial  may  direct. 

"Art.  59.  Advising  or  aiding  another  to  desert. — Any  person  subject  to 
military  law  who  advises  or  persuades  or  knowingly  assists  another  to  desert 
the  service  of  the  United  States  shall,  if  the  offense  be  committed  in  time  of 
war,  suffer  death,  or  such  other  punishment  as  a  court-martial  may  direct,  and, 
if  the  offense  be  committed  at  any  other  time,  any  punishment,  excepting  death, 
that  a  court-martial  may  direct. 

"Art.  60.  Entertaining  a  deserter. — ^Any  officer  who,  after  having  discovered 
that  a  soldier  in  his  command  is  a  deserter  from  the  military  or  naval  service 
or  from  the  Marine  Corps,  retains  such  deserter  in  his  command  without  in- 
forming superior  authority  or  the  commander  of  the  organization  to  which  the 
deserter  belongs,  shall  be  punished  as  a  court-martial  may  direct. 

"Art.  61.  Absence  without  leave. — Any  person  subject  to  military  law  who 
fails  to  repair  at  the  fixed  time  to  the  properly  appointed  place  of  duty,  or  goes 
from  the  same  without  proper  leave,  or  absents  himself  from  his  command, 
guard,  quarters,  station,  or  camp  without  proper  leave,  shall  be  punished  as  a 
court-martial  may  direct. 

"  c.  disrespect  ;    insubordination  ;    mutiny. 

"Art.  62.  Disrespect  toward  the  President,  Vice  President,  Congress, 
Secretary  of  War,  governors,  legislatures. — Any  officer  who  uses  contemptu- 
ous or  disrespectful  words  against  the  President,  Vice  President,  the  Congress 
of  the  United  States,  the  Secretary  of  War,  or  the  governor  or  legislature  of  any 
State,  Territory,  or  other  possession  of  the  United  States  in  which  he  is 
quartered  shall  be  dismissed  from  the  service  or  suffer  such  other  punishment 
as  a  court-martial  may  direct.  Any  other  person  subject  to  military  law  who 
so  offends  shall  be  punished  as  a  court-martial  may  direct. 


APPENDICES.  319 

"Art.  63.  Disrespect  toward  superior  officer. — Any  person  subject  to  mili- 
tary law  who  behaves  himself  with  disrespect  toward  his  superior  officer  shall 
be  punished  as  a  court-martial  may  direct. 

"Art.  64.  Assaulting  or  willfully  disobeying  superior  officer. — ^Any  person 
subject  to  military  law  who,  on  any  pretense  whatsover,  strikes  his  superior 
officer  or  draws  or  lifts  up  any  weapon  or  offers  any  violence  against  him,  being 
in  the  execution  of  his  office,  or  willfully  disobeys  any  lawful  command  of  his 
superior  officer,  shall  suffer  death  or  such  other  punishment  as  a  court-martial 
may  direct. 

"Art.  65.  Insubordinate  conduct  toward  noncommissioned  officer. — Any 
soldier  who  strikes  or  assaults,  or  who  attempts  or  threatens  to  strike  or 
assault,  or  willfully  disobeys  the  lawful  order  of  a  noncommissioned  officer 
while  in  the  execution  of  his  office,  or  uses  threatening  or  insulting  language, 
or  behaves  in  an  insubordinate  or  disrespectful  manner  toward  a  noncommis- 
sioned officer  while  in  the  execution  of  his  office,  shall  be  punished  as  a  court- 
martial  may  direct. 

"Art.  66.  Mutiny  or  sedition. — Any  person  subject  to  military  law  who 
attempts  to  create  or  who  begins,  excites,  causes,  or  joins  in  any  mutiny  or 
sedition  in  any  company,  party,  post,  camp,  detachment,  guard,  or  other  com- 
mand shall  suffer  death  or  such  other  punishment  as  a  court-martial  may 
direct. 

"Art.  67.  Failure  to  suppress  mutiny  ob  sedition. — Any  officer  or  soldier 
who,  being  present  at  any  mutiny  or  sedition,  does  not  use  his  utmost  endeavor 
to  suppress  the  same,  or  knowing  or  having  reason  to  believe  that  a  mutiny 
or  sedition  is  to  take  place,  does  not  without  delay  give  information  thereof 
to  his  commanding  officer  shall  suffer  death  or  such  other  punishment  as  a 
court-martial  may  direct. 

"Art.  68.  Quarrels  ;  frays  ;  disorders. — All  officers  and  noncommissioned 
officers  have  power  to  part  and  quell  all  quarrels,  frays,  and  disorders  among 
persons  subject  to  military  law  and  to  order  officers  who  take  part  in  the  same 
into  arrest,  and  other  persons  subject  to  military  law  who  take  part  in  the 
same  into  arrest  or  confinement,  as  circumstances  may  require,  until  their 
proper  superior  officer  is  acquainted  therewith.  And  whosoever,  being  so  ordered, 
refuses  to  obey  such  officer  or  noncommissioned  officer  or  draws  a  weapon 
upon  or  otherwise  threatens  or  does  violence  to  him  shall  be.  punished  as  a 
court-martial  may  direct. 

"d.  arrest;  confinement. 

"Art.  69.  Arrest  or  confinement  of  accused  persons. — ^An  officer  charged 
with  crime  or  with  a  serious  offense  under  these  articles  shall  be  placed  in 
arrest  by  the  commanding  officer,  and  in  exceptional  cases  an  officer  so  charged 
may  be  placed  in  confinement  by  the  same  authority.  A  soldier  charged  with 
crime  or  with  a  serious  offense  under  these  articles  shall  be  placed  in  confine- 
ment, and  when  charged  with  a  minor  offense  he  may  be  placed  in  arrest. 
Any  other  person  subject  to  military  law  charged  with  crime  or  with  a  serious 
offense  under  these  articles  shall  be  placed  in  confinement  or  in  arrest,  as 
circumstances  may  require;  and  when  charged  with  a  minor  offense  such 
person  may  be  placed  in  arrest.  Any  person  placed  in  arrest  under  the  pro- 
visions of  this  article  shall  thereby  be  restricted  to  his  barracks,  quarters, 
or  tent,  unless  such  limits  shall  be  enlarged  by  proper  authority.  Any  officer 
who  breaks  his  arrest  or  who  escapes  from  confinement  before  he  is  set  at 
liberty  by  proper  authority  shall  be  dismissed  from  the  service  or  suffer  such 
other  punishment  as  a  court-martial  may  direct;  and  any  other  person  subject 
to  military  law  who  escapes  from  confinement  or  who  breaks  his  arrest  before 


320  MANUAL   FOR   COUETS-MARTIAL. 

he  is  set  at  liberty  by  proper  authority  shall  be  punished  as  a  court-martial 
may  direct. 

"AeT.     70.    IVESTIGATION     OF    AND    ACTION     UPON     CHARGES. No     perSOn    put    In 

arrest  shall  be  continued  in  confinement  more  than  eight  days,  or  until  such 
time  as  a  court-martial  can  be  assembled.  When  any  person  is  put  in  arrest 
for  the  purpose  of  trial,  except  at  remote  military  posts  or  stations,  the  officer 
by  whose  order  he  is  arrested  shall  see  that  a  copy  of  the  charges  on  which 
he  is  to  be  tried  is  served  upon  him  within  eight  days  after  his  arrest,  and  that 
he  is  brought  to  trial  within  ten  days  thereafter,  unless  the  necessities  of  the 
service  prevent  such  trial ;  and  then  he  shall  be  brought  to  trial  within  thirty 
days  after  the  expiration  of  said  ten  days.  If  a  copy  of  the  charges  be  not 
served,  or  the  arrested  person  be  not  brought  to  trial,  as  herein  required,  the 
arrest  shall  cease.  But  persons  released  from  arrest,  under  the  provisions  of 
this  article,  may  be  tried,  whenever  the  exigencies  of  the  service  shall  permit, 
within  twelve  months  after  such  release  from  arrest :  Provided,  That  in  time  of 
peace  no  person  shall,  against  his  objection,  be  brought  to  trial  before  a  general 
court-martial  within  a  period  of  five  days  subsequent  to  the  service  of  charges 
upon  him. 

"Art.  71.  Refusal  to  receive  and  keep  prisoners. — No  provost  marshal  or 
commander  of  a  guard  shall  refuse  to  receive  or  keep  any  prisoner  committed 
to  his  charge  by  an  officer  belonging  to  the  forces  of  the  United  States,  provided 
the  officer  committing  shall,  at  the  time,  deliver  an  account  in  writing,  signed 
by  himself,  of  the  crime  or  offense  charged  against  the  prisoner.  Any  officer 
or  soldier  so  refusing  shall  be  punished  as  a  court-martial  may  direct. 

"Art.  72.  Report  of  prisoners  received. — Every  commander  of  a  guard  to 
whose  charge  a  prisoner  is  committed  shall,  within  twenty-four  hours  after  such 
confinement,  or  as  soon  as  he  is  relieved  from  his  guard,  report  in  writing  to  the 
commanding  officer  the  name  of  such  prisoner,  the  offense  charged  against 
him,  and  the  name  of  the  officer  committing  him ;  and  if  he  fails  to  make  such 
/eport  he  shall  be  punished  as  a  court-martial  may  direct. 

"Art.  73.  Releasing  prisoner  without  proper  authority. — Any  person  sub- 
ject to  military  law  who,  without  proper  authority,  releases  any  prisoner  duly 
committed  to  his  charge,  or  who  through  neglect  or  design  suffers  any  prisoner 
so  committed  to  escape,  shall  be  punished  as  a  court-martial  may  direct. 

"Art.  74.  Delivery  of  offenders  to  civil  authorities. — ^When  any  person 
subject  to  military  law,  except  one  who  is  held  by  the  military  authorities  to 
answer,  or  who  is  awaiting  trial  or  result  of  trial,  or  who  is  undergoing  sentence 
for  a  crime  or  offense  punishable  under  these  articles,  is  accused  of  a  crime 
or  offense  committed  within  the  geographical  limits  of  the  States  of  the  Union 
and  the  District  of  Columbia,  and  punishable  by  the  laws  of  the  land,  the 
commanding  officer  is  required,  except  in  time  of  war,  upon  application  duly 
made,  to  use  his  utmost  endeavor  to  deliver  over  such  accused  person  to  the 
civil  authorities,  or  to  aid  the  officers  of  justice  in  apprehending  and  securing 
him,  in  order  that  he  may  be  brought  to  trial.  Any  commanding  officer  who 
upon  such  application  refuses  or  willfully  neglects,  except  in  time  of  war,  to 
deliver  over  such  accused  person  to  the  civil  authorities  or  to  aid  the  officers 
of  justice  in  apprehending  and  securing  him  shall  be  dismissed  from  the  service 
or  suffer  such  other  punishment  as  a  court-martial  may  direct. 

"  When,  under  the  provisions  of  this  article,  delivery  is  made  to  the  civil 
authorities  of  an  offender  undergoing  sentence  of  a  court-martial,  such  delivery, 
if  followed  by  conviction,  shall  be  held  to  interrupt  the  execution  of  the  sentence 
of  the  court-martial,  and  the  offender  shall  be  returned  to  military  custody, 
after  having  answered  to  the  civil  authorities  for  his  offense,  for  the  comple- 
tion of  the  said  court-martial  sentence. 


APPENDICES.  321 

"  E.    WAR    OFFENSES. 

"Aet.  75. — ^MiSBEHAviOB  BEFORE  THE  ENEMY. — ^Any  offlcer  or  soldier  who  mis- 
behaves himself  before  the  enemy,  runs  away,  or  shamefully  abandons  or 
delivers  up  any  fort,  post,  camp,  guard,  or  other  command  which  it  is  his 
duty  to  defend,  or  speaks  words  inducing  others  to  do  the  like,  or  casts  away 
his  arms  or  ammunition,  or  quits  his  post  or  colors  to  plunder  or  pillage,  or 
by  any  means  whatsoever  occasions  false  alarms  in  camp,  garrison,  or  quarters, 
shall  suffer  death  or  such  other  punishment  as  a  court-martial  may  direct. 

"Art.  76.  Subordinates  compelling  commander  to  surrender. — If  any  com- 
mander of  any  garrison,  fort,  post,  camp,  guard,  or  other  command  is  com- 
pelled, by  the  officers  or  soldiers  under  his  command,  to  give  it  up  to  the  enemy 
or  to  abandon  it,  the  officers  or  soldiers  so  offending  shall  suffer  death  or  such 
other  punishment  as  a  court-martial  may  direct. 

"Art.  77.  Improper  use  of  countersign. — ^Any  person  subject  to  military  law 
who  makes  known  the  parole  or  countersign  to  any  person  not  entitled  to  re- 
ceive it  according  to  the  rules  and  discipline  of  war,  or  gives  a  parole  or 
countersign  different  from  that  which  he  received,  shall,  if  the  offense  be  com- 
mitted in  time  of  war,  suffer  death  or  such  other  punishment  as  a  court- 
martial  may  direct. 

"Art.  78.  Forcing  a  safeguard. — Any  person  subject  to  military  law  who, 
in  time  of  war,  forces  a  safeguard  shall  suffer  death  or  such  other  punishment 
as  a  court-martial  may  direct. 

"Art.  79.  Captured  property  to  be  secured  for  public  service. — ^All  public 
property  taken  from  the  enemy  is  the  property  of  the  United  States  and  shall 
be  secured  for  the  service  of  the  United  States,  and  any  person  subject  to 
military  law  who  neglects  to  secure  such  property  or  is  guilty  of  wrongful 
appropriation  thereof  shall  be  punished  as  a  court-martial  may  direct. 

"Art.  80.  Dealing  in  captured  or  abandoned  property. — Any  person  subject 
to  military  law  who  buys,  sells,  trades,  or  in  any  way  deals  in  or  disposes 
of  captured  or  abandoned  property,  whereby  he  shall  receive  or  expect  any 
profit,  benefit,  or  advantage  to  himself  or  to  any  other  person  directly  or  in- 
directly connected  with  himself,  or  who  fails  whenever  such  property  comes 
into  his  possession  or  custody  or  within  his  control  to  give  notice  thereof 
to  the  proper  authority  and  to  turn  over  such  property  to  the  proper  authority 
without  delay,  shall,  on  conviction  thereof,  be  punished  by  fine  or  imprison- 
ment, or  by  such  other  punishment  as  a  court-martial,  military  commission,  or 
other  military  tribunal  may  adjudge,  or  by  any  or  all  of  said  penalties. 

"Art.  81.  Relieving,  corresponding  with,  or  aiding  the  enemy. — Whosoever 
relieves  the  enemy  with  arms,  ammunition,  supplies,  money,  or  other  thing,  or 
knowingly  harbors  or  protects  or  holds  correspondence  with  or  gives  intelli- 
gence to  the  enemy,  either  directly  or  indirectly,  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  or  military  commission  may  direct. 

"Art.  82.  Spies. — Any  person  who  in  time  of  war  shall  be  found  lurking  or 
acting  as  a  spy  in  or  about  any  of  the  fortifications,  posts,  quarters,  or  encamp- 
ments of  any  of  the  armies  of  the  United  States,  or  elsewhere,  shall  be  tried 
by  a  general  court-martial  or  by  a  military  commission,  and  shall,  on  conviction 
thereof,  suffer  death. 

"f.  miscellaneous  crimes  and  offenses. 

"Art.    83.     Military   property — Willful   or    negligent   loss,    damage,    ob 
WRONGFUL  disposition — Any  person  subject  to  military  law  who  willfully,  or 
through  neglect,  suffers  to  be  lost,  spoiled,  damaged,  or  wrongfully  disposed  of, 
91487°— 17 22 


322  MANUAL  FOR  COURTS-MARTIAL. 

any  military  property  belonging  to  the  United  States  shall  make  good  the  loss 
or  damage  and  suffer  such  punishment  as  a  court-martial  may  direct. 

"Art  84.  Waste  oe  unlawful  disposition  of  military  property  issued  to 
SOLDIERS. — Any  soldier  who  sells  or  wrongfully  disposes  of  or  willfully  or 
through  neglect  injures  or  loses  any  horse,  arms,  ammunition,  accouterments, 
equipment,  clothing,  or  other  property  issued  for  use  in  the  military  service, 
shall  be  punished  as  a  court-martial  may  direct. 

"Art.  85.  Drunk  on  duty. — ^Any  officer  who  is  found  drunk  on  duty  shall,  if 
the  offense  be  committed  in  time  of  war,  be  dismissed  from  the  service  and 
suffer  such  other  punishment  as  a  court-martial  may  direct ;  and  if  the  offense 
be  committed  in  time  of  peace,  he  shall  be  punished  as  a  court-martial  may 
direct.  Any  person  subject  to  military  law,  except  an  officer,  who  Is  found 
drunk  on  duty  shall  be  punished  as  a  court-martial  may  direct. 

"Art.  86.  Misbehavior  of  sentinel. — ^Any  sentinel  who  is  found  drunk  or 
sleeping  upon  his  post,  or  who  leaves  it  before  he  is  regularly  relieved,  shall, 
if  the  offense  be  committed  in  time  of  war,  suffer  death  or  such  other  punish- 
ment as  a  court-martial  may  direct;  and  if  the  offense  be  committed  in  time 
of  peace,  he  shall  suffer  any  punishment,  except  death,  that  a  court-martial 
may  direct. 

"Art.  87.  Personal  interest  in  sale  of  provisions. — ^Any  officer  command- 
ing in  any  garrison,  fort,  barracks,  camp,  or  other  place  where  troops  of  the 
United  States  may  be  serving  who,  for  his  private  advantage,  lays  any  duty 
or  imposition  upon  or  is  interested  in  the  sale  of  any  victuals  or  other  neces- 
saries of  life  brought  into  such  garrison,  fort,  barracks,  camp,  or  other  place 
for  the  use  of  the  troops,  shall  be  dismissed  from  the  service  and  suffer  such 
other  punishment  as  a  court-martial  may  direct. 

"Art.  88.  Intimidation  of  persons  bringing  provisions. — Any  person  subject 
to  military  law  who  abuses,  intimidates,  does  violence  to,  or  wrongfully  inter- 
feres with  any  person  bringing  provisions,  supplies,  or  other  necessaries  to  the 
camp,  garrison,  or  quarters  of  the  forces  of  the  United  States  shall  suffer  such 
punishment  as  a  court-martial  may  direct. 

"Art.  89.  Good  order  to  be  maintained  and  wrongs  redressed. — All  persona 
subject  to  military  law  are  to  behave  themselves  orderly  in  quarters,  garrison, 
camp,  and  on  the  march;  and  any  person  subject  to  military  law  who  com- 
mits any  waste  or  spoil,  or  willfully  destroys  any  property  whatsoever  (unless 
by  order  of  his  commanding  officer),  or  commits  any  kind  of  depredation  or 
riot,  shall  be  punished  as  a  court-martial  may  direct.  Any  commanding  officer 
who,  upon  complaint  made  to  him,  refuses  or  omits  to  see  reparation  made  to 
the  party  injured,  in  so  far  as  the  offender's  pay  shall  go  toward  such  repara- 
tion, as  provided  for  in  article  one  hundred  and  five,  shall  be  dismissed  from  the 
service,  or  otherwise  punished,  as  a  court-martial  may  direct. 

"Art.  90,  Provoking  speeches  or  gestures. — No  person  subject  to  military 
law  shall  use  any  reproachful  or  provoking  speeches  or  gestures  to  another; 
and  any  person  subject  to  military  law  who  offends  against  the  provisions  of 
this  article  shall  be  punished  as  a  court-martial  may  direct. 

"Art.  91.  Dueling. — Any  person  subject  to  military  law  who  fights  or  pro- 
motes or  is  concerned  in  or  connives  at  fighting  a  duel,  or  who  having  knowl- 
edge of  a  challenge  sent  or  about  to  be  sent  fails  to  report  the  fact  promptly  to 
the  proper  authority  shall,  if  an  officer,  be  dismissed  from  the  service  or  suffer 
such  other  punishment  as  a  court-martial  may  direct;  and  if  any  other  person 
subject  to  military  law,  shall  suffer  such  punishment  as  a  court-martial  may 
direct. 

"Art.  92.  Murder — Rape. — Any  person  subject  to  military  law  who  commits 
murder  or  rape  shall  suffer  death  or  imprisonment  for  life,  as  a  court-martial 


APPENDICES.  323 

may  direct;  but  no  person  shall  be  tried  by  court-martial  for  murder  or  rape 
committed  within  the  geographical  limits  of  the  States  of  the  Union  and  the 
District  of  Columbia  in  time  of  peace. 

[Note. — This  article  became  effective  on  August  29,  1916.] 

"Aet.  93.  Vabious  crimes. — ^Any  person  subject  to  military  law  who  commits 
manslaughter,  mayhem,  arson,  burglary,  robbery,  larceny,  embezzlement,  per- 
jury, assault  with  intent  to  commit  any  felony,  or  assault  with  intent  to  do 
bodily  harm,  shall  be  punished  as  a  court-martial  may  direct. 

"Art.  94.  Frauds  against  the  Government. — ^Any  person  subject  to  military 
law  who  makes  or  causes  to  be  made  any  claim  against  the  United  States  or 
any  officer  thereof,  knowing  such  claim  to  be  false  or  fraudulent ;  or 

"  Who  presents  or  causes  to  be  presented  to  any  person  in  the  civil  or 
military  service  thereof,  for  approval  or  payment,  any  claim  against  the  United 
States,  or  any  officer  thereof,  knowing  such  claim  to  be  false  or  fraudulent ;  or 

"  Who  enters  into  any  agreement  or  conspiracy  to  defraud  the  United 
States  by  obtaining,  or  aiding  others  to  obtain,  the  allowance  or  payment  of 
any  false  or  fraudulent  claim ;  or 

"  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  approval, 
allowance,  or  payment  of  any  claim  against  the  United  States  or  against  any 
officer  thereof,  makes  or  uses,  or  procures,  or  advises  the  making  or  use  of, 
any  writing  or  other  paper  knowing  the  same  to  contain  any  false  or  fraudu- 
lent statements ;  or 

"  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  approval, 
allowance,  or  payment  of  any  claim  against  the  United  States  or  any  officer 
thereof,  makes,  or  procures,  or  advises  the  making  of,  any  oath  to  any  fact  or 
to  any  writing  or  other  paper  knowing  such  oath  to  be  false ;  or 

"  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  approval, 
allowance,  or  payment  of  any  claim  against  the  United  States  or  any  officer 
thereof,  forges  or  counterfeits,  or  procures,  or  advises  the  forging  or  coun- 
terfeiting of  any  signature  upon  any  writing  or  other  paper,  or  uses,  or  pro- 
cures, or  advises  the  use  of  any  such  signature,  knowing  the  same  to  be  forged 
or  counterfeited ;  or 

"  Who,  having  charge,  possession,  custody,  or  control  of  any  money  or  other 
property  of  the  United  States,  furnished  or  intended  for  the  military  service 
thereof,  knowingly  delivers,  or  causes  to  be  delivered,  to  any  person  having 
authority  to  receive  the  same,  any  amount  thereof  less  than  that  for  which  he 
receives  a  certificate  or  receipt ;  or 

"  Who,  being  authorized  to  make  or  deliver  any  paper  certifying  the  receipt 
of  any  property  of  the  United  States  furnished  or  intended  for  the  military 
service  thereof,  makes  or  delivers  to  any  person  such  writing,  without  having 
full  knowledge  of  the  truth  of  the  statements  therein  contained  and  with  In- 
tent to  defraud  the  United  States ;  or 

"Who  steals,  embezzles,  knowingly  and  willfully  misappropriates,  applies  to 
his  own  use  or  benefit,  or  wrongfully  or  knowingly  sells  or  disposes  of  any 
ordnance,  arms,  equipments,  ammunition,  clothing,  subsistence  stores,  money, 
or  other  property  of  the  United  States  furnished  or  intended  for  the  military 
service  thereof;  or 

"Who  knowingly  purchases  or  receives  in  pledge  for  any  obligation  or  In- 
debtedness from  any  soldier,  officer,  or  other  person  who  is  a  part  of  or 
employed  in  said  forces  or  service,  any  ordnance,  arms,  equipment,  ammuni- 
tion, clothing,  subsistence  stores,  or  other  property  of  the  United  States,  such 
soldier,  officer,  or  other  person  not  having  lawful  right  to  sell  or  pledge  the 
same: 


324  MANUAL  FOR  COURTS-MARTIAL. 

"  Shall,  on  conviction  thereof,  be  punished  by  fine  or  imprisonment,  or  by 
such  other  punishment  as  a  court-martial  may  adjudge,  or  by  any  or  all  of 
said  penalties.  And  if  any  person,  being  guilty  of  any  of  the  offenses  aforesaid 
while  in  the  military  service  of  the  United  States,  receives  his  discharge  or  is 
dismissed  from  the  service,  he  shall  continue  to  be  liable  to  be  arrested  and 
held  for  trial  and  sentence  by  a  court-martial  in  the  same  manner  and  to  the 
same  extent  as  if  he  had  not  received  such  discharge  nor  been  dismissed. 

"Art.  95.  Conduct  unbecoming  an  officek  and  gentijiman. — ^Any  officer  or 
cadet  who  is  convicted  of  conduct  unbecoming  an  officer  and  a  gentleman  shall 
be  dismissed  from  the  service. 

"Art.  96.  General  article. — Though  not  mentioned  in  these  articles,  all  dis- 
orders and  neglects  to  the  prejudice  of  good  order  and  military  discipline,  all 
conduct  of  a  nature  to  bring  discredit  upon  the  military  service,  and  all  crimes 
or  offenses  not  capital,  of  which  persons  subject  to  military  law  may  be  guilty, 
shall  be  taken  cognizance  of  by  a  general  or  special  or  summary  court-martial, 
according  to  the  nature  and  degree  of  the  offense,  and  punished  at  the  dis- 
cretion of  such  court. 

"IV.    COURTS   OF   INQUIRY. 

"Art.  97.  When  and  by  whom  ordered. — ^A  court  of  inquiry  to  examine  into 
the  nature  of  any  transaction  of  or  accusation  or  imputation  against  any  officer 
or  soldier  may  be  ordered  by  the  President  or  by  any  commanding  officer ;  but  a 
court  of  inquiry  shall  not  be  ordered  by  any  commanding  officer  except  upon 
the  request  of  the  officer  or  soldier  whose  conduct  is  to  be  inquired  into. 

"Art.  98.  Composition. — ^A  court  of  inquiry  shall  consist  of  three  or  more 
officers.  For  each  court  of  inquiry  the  authority  appointing  the  court  shall 
appoint  a  recorder. 

"Art.  99.  Challenges. — ^Members  of  a  court  of  inquiry  may  be  challenged  by 
the  party  whose  conduct  is  to  be  inquired  into,  but  only  for  cause  stated  to  the 
court.  The  court  shall  determine  the  relevancy  and  validity  of  any  challenge, 
and  shall  not  receive  a  challenge  to  more  than  one  member  at  a  time.  The 
party  whose  conduct  is  being  inquired  into  shall  have  the  right  to  be  repre- 
sented before  the  court  by  counsel  of  his  own  selection,  if  such  counsel  be 
reasonably  available. 

"Art.  100.  Oath  of  members  and  recorders. — The  recorder  of  a  court  of 
inquiry  shall  administer  to  the  members  the  following  oath :  *  You,  A.  B.,  do 
swear  (or  affirm)  that  you  will  well  and  truly  examine  and  inquire,  according 
to  the  evidence,  into  the  matter  now  before  you,  without  partiality,  favor, 
affection,  prejudice,  or  hope  of  reward.  So  help  you  God.'  After  which  the 
president  of  the  court  shall  administer  to  the  recorder  the  following  oath: 
*  You,  A.  B.,  do  swear  (or  affirm)  that  you  will,  according  to  your  best  abilities, 
accurately  and  impartially  record  the  proceedings  of  the  court  and  the  evidence 
to  be  given  in  the  case  in  hearing.    So  help  you  God.' 

"  In  case  of  affirmation  the  closing  sentence  of  adjuration  will  be  omitted. 

"Art.  101.  Powers  ;  procedure. — A  court  of  inquiry  and  the  recorder  thereof 
shall  have  the  same  power  to  summon  and  examine  witnesses  as  is  given  to 
courts-martial  and  the  judge  advocate  thereof.  Such  witnesses  shall  take  the 
same  oath  or  affirmation  that  is  taken  by  witnesses  before  courts-martial.  A  re- 
porter or  an  interpreter  for  a  court  of  inquiry  shall,  before  entering  upon  his 
duties,  take  the  oath  or  affirmation  required  of  a  reporter  or  an  interpreter  for 
a  court-martial.  The  party  whose  conduct  is  being  inquired  into  or  his  counsel, 
if  any,  shall  be  permitted  to  examine  and  cross-examine  witnesses  so  as  fully 
to  investigate  the  circumstances  in  question. 


APPENDICES.  325 

"Aet.  102.  Opinion  on  merits  of  case. — A  court  of  inquiry  shall  not  give  an 
opinion  on  the  merits  of  the  case  inquired  into  unless  specially  ordered  to  do  so. 

"Aet.  103.  Record  of  proceedings — ^IIow  authenticated. — Each  court  of  in- 
quiry shall  keep  a  record  of  its  proceedings,  which  shall  be  authenticated  by 
the  signature  of  the  president  and  the  recorder  thereof,  and  be  forwarded  to 
the  convening  authority.  In  case  the  record  can  not  be  authenticated  by  the 
recorder,  by  reason  of  his  death,  disability,  or  absence,  it  shall  be  signed  by 
the  president  and  by  one  other  member  of  the  court. 

"  V.  miscellaneous  provisions. 

"Art.  104.  Disciplinary  powers  of  commanding  officers. — Under  such  regu- 
lations as  the  President  may  prescribe,  and  which  he  may  from  time  to  time 
revolie,  alter,  or  add  to,  the  commanding  oflScer  of  any  detachment,  company, 
or  higher  command  may,  for  minor  offenses  not  denied  by  the  accused,  impose 
disciplinary  punishments  upon  persons  of  his  command  without  the  inter- 
vention of  a  court-martial,  unless  the  accused  demands  trial  by  court-martial. 

"  The  disciplinary  punishments  authorized  by  this  article  may  include 
admonition,  reprimand,  withholding  of  privileges,  extra  fatigue,  and  restriction 
to  certain  specified  limits,  but  shall  not  include  forfeiture  of  pay  or  confine- 
ment under  guard.  A  person  punished  under  authority  of  this  article,  who 
deems  his  punishment  unjust  or  disproportionate  to  the  offense  may,  through 
the  proper  channel,  appeal  to  the  next  superior  authority,  but  may  in  the 
meantime  be  required  to  undergo  the  punishment  adjudged.  The  commanding 
officer  who  imposes  the  punishment,  his  successor  in  command,  and  superior 
authority  shall  have  power  to  mitigate  or  remit  any  unexecuted  portion  of 
the  punishment.  The  imposition  and  enforcement  of  disciplinary  punishment 
under  authority  of  this  article  for  any  act  or  omission  shall  not  be  a  bar  to 
trial  by  court-martial  for  a  crime  or  offense  growing  out  of  the  same  act  or 
omission;  but  the  fact  that  a  disciplinary  punishment  has  been  enforced  may 
be  shown  by  the  accused  upon  trial,  and  when  so  shown  shall  be  considered  in 
determining  the  measure  of  punishment  to  be  adjudged  in  the  event  of  a  finding 
of  guilty. 

"Art,  105.  Injuries  to  person  of  property — Redress  of. — Whenever  com- 
plaint is  made  to  any  commanding  officer  that  damage  has  been  done  to  the 
property  of  any  person  or  that  his  property  has  been  wrongfully  taken  by  per- 
sons subject  to  military  law,  such  complaint  shall  be  investigated  by  a  board 
consisting  of  any  number  of  officers  from  one  to  three,  which  board  shall  be 
convened  by  the  commanding  officer  and  shall  have,  for  the  purpose  of  such 
investigation,  power  to  summon  witnesses  and  examine  them  upon  oath  or 
affirmation,  to  receive  depositions  or  other  documentary  evidence,  and  to  assess 
the  damages  sustained  against  the  responsible  parties.  The  assessment  of 
damages  made  by  such  board  shall  be  subject  to  the  approval  of  the  command- 
ing officer,  and  in  the  amount  approved  by  him  shall  be  stopped  against  the  pay 
of  the  offenders.  And  the  order  of  such  commanding  officer  directing  stoppages 
herein  authorized  shall  be  conclusive  on  any  disbursing  officer  for  the  payment 
by  him  to  the  injured  parties  of  the  stoppages  so  ordered. 

"  Where  the  offenders  can  not  be  ascertained,  but  the  organization  or  detach- 
ment to  which  they  belong  is  known,  stoppages  to  the  amount  of  damages 
inflicted  may  be  made  and  assessed  in  such  proportion  as  may  be  deemed  just 
upon  the  individual  members  thereof  who  are  shown  to  have  been  present  with 
such  organization  or  detachment  at  the  time  the  damages  complained  of  were 
inflicted  as  determined  by  the  approved  findings  of  the  board. 


f 


326  MANUAL  JFOR   COURTS- MARTIAL. 

"Art.  106.  Arbest  of  deserters  by  civil  officials. — It  shall  be  lawful  for  any- 
civil  officer  having  authority  under  the  laws  of  the  United  States,  or  of  any 
State,  Territory,  District,  or  possession  of  the  United  States,  to  arrest  of- 
fenders, summarily  to  arrest  a  deserter  from  the  military  service  of  the  United 
States  and  deliver  him  into  the  custody  of  the  military  authorities  of  the 
United  States. 

"Art.  107.  Soldiers  to  make  good  time  lost. — Every  soldier  who  in  an  exist- 
ing or  subsequent  enlistment  deserts  the  service  of  the  United  States  or  without 
proper  authority  absents  himself  from  his  organization,  station,  or  duty  for 
more  than  one  day,  or  who  is  confined  for  more  than  one  day  under  sentence,  or 
while  awaiting  trial  and  disposition  of  his  case,  if  the  trial  results  in  conviction, 
or  through  the  intemperate  use  of  drugs  or  alcoholic  liquor,  or  through  dis- 
ease or  injury  the  result  of  his  own  misconduct,  renders  himself  unable  for 
more  than  one  day  to  perform  duty,  shall  be  liable  to  serve,  after  his  return 
to  a  full-duty  status,  for  such  period  as  shall,  with  the  time  he  may  have 
served  prior  to  such  desertion,  unauthorized  absence,  confinement,  or  inability 
to  perform  duty,  amount  to  the  full  term  of  that  part  of  his  enlistment  period 
which  he  is  required  to  serve  with  his  organization  before  being  furloughed  to 
the  Army  reserve. 

"Art.  108.  Soldiers — Separation  prom  the  service. — No  enlisted  man,  law- 
fully inducted  into  the  military  service  of  the  United  States,  shall  be  discharged 
from  said  service  without  a  certificate  of  discharge,  signed  by  a  field  officer  of 
the  regiment  or  other  organization  to  which  the  enlisted  man  belongs  or  by  the 
commanding  officer  when  no  such  field  officer  is  present ;  and  no  enlisted  man 
shall  be  discharged  from  said  service  before  his  term  of  service  has  expired, 
except  by  order  of  the  President,  the  Secretary  of  War,  the  commanding  officer 
of  a  department,  or  by  sentence  of  a  general  court-martial. 

"Art.  109.  Oath  of  enlistment. — At  the  time  of  his  enlistment  every  soldier 

shall  take  the  following  oath  or  affirmation:  'I, ,  do  solemnly  swear  (or 

affirm)  that  I  will  bear  true  faith  and  allegiance  to  the  United  States  of 
America ;  that  I  will  serve  them  honestly  and  faithfully  against  all  their  enemies 
whomsoever;  and  that  I  will  obey  the  orders  of  the  President  of  the  United 
States  and  the  orders  of  the  officers  appointed  over  me,  according  to  the  Rules 
and  Articles  of  War.'    This  oath  or  affirmation  may  be  taken  before  any  officer, 

"Art.  110.  Certain  articles  to  be  read  and  explained. — Articles  one,  two, 
and  twenty-nine,  fifty-four  to  ninety-six,  inclusive,  and  one  hundred  and  four 
to  one  hundred  and  nine,  inclusive,  shall  be  read  and  explained  to  every  soldier 
at  the  time  of  his  enlistment  or  muster  in,  or  within  six  days  thereafter,  and 
shall  be  read  and  explained  once  every  six  months  to  the  soldiers  of  every  gar- 
rison, regiment,  or  company  in  the  service  of  the  United  States. 

"Art.  111.  Copy  of  record  of  TRiAL.-r-Every  person  tried  by  a  general  court- 
martial  shall,  on  demand  therefor,  made  by  himself  or  by  any  person  in  his 
behalf,  be  entitled  to  a  copy  of  the  record  of  the  trial. 

"Art.  112.  Effects  of  deceased  persons — Disposition  of. — In  case  of  the 
death  of  any  person  subject  to  military  law,  the  commanding  officer  of  the 
place  or  command  will  permit  the  legal  representative  or  widow  of  the  de- 
ceased, if  present,  to  take  possession  of  all  his  effects  then  in  camp  or  quarters, 
and  if  no  legal  representative  or  widow  be  present,  the  commanding  officer  shall 
direct  a  summary  court  to  secure  all  such  effects;  and  said  summary  court 
shall  have  authority  to  convert  such  effects  into  cash,  by  public  or  private  sale, 
not  earlier  than  thirty  days  after  the  death  of  the  deceased,  and  to  collect  and 
receive  any  debts  due  decedent's  estate  by  local  debtors ;  and  as  soon  as  practi- 
cable after  converting  such  effects  into  cash  said  summary  court  shall  deposit 


APPENDICES.  327 

with  the  proper  officer,  to  be  designated  in  regulations,  any  cash  belonging  to 
decedent's  estate,  and  shall  transmit  a  receipt  for  such  deposit,  accompanied  by 
any  will  or  other  papers  of  value  belonging  to  the  deceased,  an  inventory  of  the 
effects  secured  by  said  summary  court,  and  a  full  account  of  his  transactions  to 
the  War  Department  for  transmission  to  the  Auditor  for  the  War  Department 
for  action  as  authorized  by  law  in  the  settlement  of  the  accounts  of  deceased 
officers  or  enlisted  men  of  the  Army ;  but  if  in  the  meantime  the  legal  repre- 
sentative, or  widow,  shall  present  himself  or  herself  to  take  possession  of 
decedent's  estate,  the  said  summary  court  shall  turn  over  to  him  or  her  all 
effects  not  sold  and  cash  belonging  to  said  estate,  together  with  an  inventory  and 
account,  and  make  to  the  War  Department  a  full  report  of  his  transactions. 

"  The  provisions  of  this  article  shall  be  applicable  to  inmates  of  the  United 
States  Soldiers'  Home  who  die  in  any  United  States  military  hospital  outside  of 
the  District  of  Columbia  where  sent  from  the  home  for  treatment. 

"Art.  113.  Inquests. — When  at  any  post,  fort,  camp,  or  other  place  garrisoned 
by  the  military  forces  of  the  United  States  and  under  the  exclusive  jurisdiction 
of  the  United  States,  any  person  shall  have  been  found  dead  under  circumstances 
which  appear  to  require  investigation,  the  commanding  officer  will  designate 
and  direct  a  summary  court-martial  to  investigate  the  circumstances  attending 
the  death ;  and,  for  this  purpose,  such  summary  court-martial  shall  have  power 
to  summon  witnesses  and  examine  them  upon  oath  or  affirmation.  He  shall 
promptly  transmit  to  the  post  or  other  commander  a  report  of  his  investigation 
and  of  his  findings  as  to  the  cause  of  the  death. 

"Art.  114.  Authority  to  administer  oaths. — Any  judge  advocate  or  acting 
judge  advocate,  the  president  of  a  general  or  special  court-martial,  any  sum- 
mary court-martial,  the  judge  advocate  or  any  assistant  judge  advocate  of  a 
general  or  special  court-martial,  the  president  or  the  recorder  of  a  court  of 
inquiry  or  of  a  military  board,  any  officer  designated  to  take  a  deposition,  any 
officer  detailed  to  conduct  an  investigation,  and  the  adjutant  of  any  command 
shall  have  power  to  administer  oaths  for  the  purposes  of  the  administration  of 
military  justice  and  for  other  purposes  of  military  administration ;  and  in  for- 
eign places  where  the  Army  may  be  serving  shall  have  the  general  powers  of  a 
notary  public  or  of  a  consul  of  the  United  States  in  the  administration  of  oaths, 
the  execution  and  acknowledgment  of  legal  instruments,  the  attestation  of  docu- 
ments, and  all  other  forms  of  notarial  acts  to  be  executed  by  persons  subject  to 
military  law. 

"Art.  115.  Appointment  of  reporters  and  interpreters. — Under  such  regula- 
tions as  the  Secretary  of  War  may  from  time  to  time  prescribe,  the  president  of 
a  court-martial  or  military  commission,  or  a  court  of  inquiry  shall  have  power 
to  appoint  a  reporter,  who  shall  record  the  proceedings  of  and  testimony  taken 
before  such  court  or  commission  and  may  set  down  the  same,  in  the  first  in- 
stance, in  shorthand.  Under  like  regulations  the  president  of  a  court-martial 
or  military  commission,  or  court  of  inquiry,  or  a  summary  court,  may  appoint  an 
interpreter,  who  shall  interpret  for  the  court  or  commission. 

"Art.  116.  Powers  of  assistant  judge  advocates. — An  assistant  judge  advo- 
cate of  a  general  court-martial  shall  be  competent  to  perform  any  duty  devolved 
by  law,  regulation,  or  the  custom  of  the  service  upon  the  judge  advocate  of  the 
court. 

"Art.  117.  Removal  of  civil  suits. — When  any  civil  or  criminal  prosecn- 
tion  is  commenced  in  any  court  of  a  State  against  any  officer,  soldier,  or  other 
person  in  the  military  service  of  the  United  States  on  account  of  any  act  done 
under  color  of  his  office  or  status,  or  in  respect  to  which  he  claims  any  right, 
title,  or  authority  under  any  law  of  the  United  States  respecting  the  military 


328  MANUAL   FOR   COURTS-MARTIAL. 

forces  thereof,  or  under  the  law  of  war,  such  suit  or  prosecution  may  at  any 
time  before  the  trial  or  final  hearing  thereof  be  removed  for  trial  into  the 
district  court  of  the  United  States  in  the  district  where  the  same  is  pending  in 
the  manner  prescribed  in  section  thirty-three  of  the  Act  entitled  'An  Act  to 
codify,  revise,  and  amend  the  laws  relating  to  the  judiciary,'  approved  March 
three,  nineteen  hundred  and  eleven,  and  the  cause  shall  thereupon  be  entered 
on  the  docket  of  said  district  court  and  shall  proceed  therein  as  if  the  cause 
had  been  originally  commenced  in  said  district  court  and  the  same  proceedings 
had  been  taken  in  such  suit  or  prosecution  in  said  district  court  as  shall  have 
been  had  therein  in  said  State  court  prior  to  its  removal,  and  said  district  court 
shall  have  full  power  to  hear  and  determine  said  cause. 

"Aet.  118,  Officeks,  sepaeation  fkom  seevice. — No  officer  shall  be  discharged 
or  dismissed  from  the  service  except  by  order  of  the  President  or  by  sentence  of 
a  general  court-martial ;  and  in  time  of  peace  no  officer  shall  be  dismissed  except 
in  pursuance  of  the  sentence  of  a  court-martial  or  in  mitigation  thereof ;  but  the 
President  may  at  any  time  drop  from  the  rolls  of  the  Army  any  officer  who 
has  been  absent  from  duty  three  months  without  leave  or  who  has  been  absent 
in  confinement  in  a  prison  or  penitentiary  for  three  months  after  final  conviction 
by  a  court  of  competent  jurisdiction. 

"Abt.  119.  Rank  and  peecedence  among  Regiilabs,  Militia,  and  Volun- 
teees. — That  in  time  of  war  or  public  danger,  when  two  or  more  officers  of  the 
same  grade  are  on  duty  in  the  same  field,  department,  or  command,  or  of  or- 
ganizations thereof,  the  President  may  assign  the  command  of  the  forces  of 
such  field,  department,  or  command,  or  of  any  organization  thereof,  without 
regard  to  seniority  of  rank  in  the  same  grade.  In  the  absence  of  such  assign- 
ment by  the  President,  officers  of  the  same  grade  shall  rank  and  have  precedence 
in  the  following  order,  without  regard  to  date  of  rank  or  commission  as  be- 
tween officers  of  different  classes,  namely :  First,  officers  of  the  Regular  Army 
and  officers  of  the  Marine  Corps  detached  for  service  with  the  Army  by  order  of 
the  President ;  second,  officers  of  forces  drafted  or  called  into  the  service  of  the 
United  States;  and,  third,  officers  of  the  volunteer  forces:  Provided,  That 
officers  of  the  Regular  Army  holding  commissions  in  forces  drafted  or  called 
into  the  service  of  the  United  States  or  in  the  volunteer  forces  shall  rank  and 
have  precedence  under  said  commissions  as  if  they  were  commissions  in  the 
Regular  Army ;  the  rank  of  officers  of  the  Regular  Army  under  commissions  in 
the  National  Guard  as  such  shall  not,  for  the  purposes  of  this  article,  be  held 
to  antedate  the  acceptance  of  such  officers  into  the  service  of  the  United  States 
under  said  commissions. 

"Aet.  120.  Command  when  diffeeent  coeps  oe  commands  happen  to  join. — 
When  different  corps  or  commands  of  the  military  forces  of  the  United  States 
happen  to  joint  or  do  duty  together  the  officer  highest  in  rank  of  the  line  of  the 
Regular  Army,  Marine  Corps,  forces  drafted  or  called  into  the  service  of  the 
United  States,  or  Volunteers,  there  on  duty,  shall,  subject  to  the  provisions  of 
the  last  preceding  article,  command  the  whole  and  give  orders  for  what  is 
needful  in  the  service,  unless  otherwise  directed  by  the  President. 

"Abt.  121.  Complaints  of  wbongs. — ^Any  officer  or  soldier  who  believes  himself 
wronged  by  his  commanding  officer,  and,  upon  due  application  to  such  com- 
mander, is  refused  redress,  may  complain  to  the  general  commanding  in  the 
locality  where  the  officer  against  whom  the  complaint  is  made  is  stationed.  The 
general  shall  examine  into  said  complaint  and  take  proper  measures  for  redress- 
ing the  wrong  complained  of ;  and  he  shall,  as  soon  as  possible,  transmit  to  the 
Department  of  War  a  true  statement  of  such  complaint,  with  the  proceedings 
had  thereon." 


APPENDICES.  329 

Sec.  4.  The  provisions  of  section  three  of  this  Act  shall  take  effect  and  be  in 
force  on  and  after  the  first  day  of  March,  nineteen  hundred  and  seventeen: 
Provided,  That  articles  four,  thirteen,  fourteen,  fifteen,  twenty-nine,  forty- 
seven,  forty-nine,  and  ninety-two  shall  take  effect  immediately  upon  the  ap- 
proval of  this  Act. 

Sec.  5.  That  all  offenses  committed  and  all  penalties,  forfeitures,  fines,  or  lia- 
bilities incurred  prior  to  the  taking  effect  of  this  Act,  under  any  law  embraced 
in  or  modified,  changed,  or  repealed  by  this  Act,  may  be  prosecuted,  punished, 
and  enforced  in  the  same  manner  and  with  the  same  effect  as  if  this  Act  had 
not  been  passed. 

Sec.  6.  All  laws  and  parts  of  laws  in  so  far  as  they  are  inconsistent  with  this 
Act  are  hereby  repealed. 

Act  of  August  29,  1916  (39  Stat.,  G50-670). 


APPENDIX  2. 

SYSTEM   OF   COURTS-MARTIAL   FOR   NATIONAL    GUARD 
NOT  IN  THE  SERVICE  OF  THE  UNITED  STATES. 

Sec.  102.  Except  in  organizations  in  the  service  of  the  United  States,  courts- 
martial  in  the  National  Guard  shall  be  of  three  kinds,  namely,  general  courts- 
martial,  special  courts-martial,  and  summary  courts-martial.  They  shall  be 
constituted  like,  and  have  cognizance  of  the  same  subjects,  and  possess  like 
powers,  except  as  to  punishments,  as  similar  courts  provided  for  by  the  laws 
and  regulations  governing  the  Army  of  the  United  States,  and  the  proceedings 
of  courts-martial  of  the  National  Guard  shall  follow  the  forms  and  modes  of 
procedure  prescribed  for  said  similar  courts. 

Sec.  103.  General  courts-martial  of  the  National  Guard  not  in  the  service  of 
the  United  States  may  be  convened  by  orders  of  the  President,  or  of  the  gov- 
ernors of  the  respective  States  and  Territories,  or  by  the  commanding  general 
of  the  National  Guard  of  the  District  of  Columbia,  and  such  courts  shall  have 
the  power  to  impose  fines  not  exceeding  $200 ;  to  sentence  to  forfeiture  of  pay 
and  allowances;  to  a  reprimand;  to  dismissal  or  dishonorable  discharge  from 
the  service;  to  reduction  of  noncommissioned  officers  to  the  ranks;  or  any 
two  or  more  of  such  punishments  may  be  combined  in  the  sentences  imposed 
by  such  courts. 

Sec.  104.  In  the  National  Guard,  not  in  the  service  of  the  United  States,  the 
commanding  officer  of  each  garrison,  fort,  post,  camp,  or  other  place,  brigade, 
regiment,  detached  battalion,  or  other  detached  command,  may  appoint  special 
courts-martial  for  his  command;  but  such  special  courts-martial  may  in  any 
case  be  appointed  by  superior  authority  when  by  the  latter  deemed  desirable. 
Special  courts-martial  shall  have  power  to  try  any  person  subject  to  military 
law,  except  a  commissioned  officer,  for  any  crime  or  offense  made  punishable  by 
the  military  laws  of  the  United  Slates,  and  such  special  courts-martial  shall 
have  the  same  powers  of  punishment  as  do  general  courts-martial,  except  that 
fines  imposed  by  such  courts  shall  not  exceed  $100. 

Sec.  105.  In  the  National  Guard,  not  in  the  service  of  the  United  States,  the 
commanding  officer  of  each  garrison,  fort,  post,  or  other  place,  regiment  or 
corps,  detached  battalion,  company,  or  other  detachment  of  the  National  Guard 
may  appoint  for  such  place  or  command  a  summary  court  to  consist  of  one 
officer,  who  shall  have  power  to  administer  oaths  and  to  try  the  enlisted  men 
of  such  place  or  command  for  breaches  of  discipline  and  violations  of  laws  gov- 
erning such  organizations;  and  said  court,  when  satisfied  of  the  guilt  of  such 
soldier,  may  impose  fines  not  exceeding  $25  for  any  single  offense ;  may  sentence 
noncommissioned  officers  to  reduction  to  the  ranks ;  may  sentence  to  forfeiture 
of  pay  and  allowances.  The  proceedings  of  such  court  shall  be  informal,  and 
the  minutes  thereof  shall  be  the  same  as  prescribed  for  summary  courts  of  the' 
Army  of  the  United  States. 

Sec.  106.  All  courts-martial  of  the  National  Guard,  not  in  the  service  of  the 
United  States,  including  summary  courts,  shall  have  power  to  sentence  to  con- 

331 


332  MANUAL  FOR  COURTS-MARTIAL. 

finement  in  lieu  of  fines  authorized  to  be  imposed:  Provided,  That  such  sen- 
tences of  confinement  shall  not  exceed  one  day  for  each  dollar  of  fine  authorized. 

Sec.  107.  No  sentence  of  dismissal  from  the  service  or  dishonorable  discharge, 
imposed  by  a  National  Guard  court-martial,  not  in  the  service  of  the  United 
States,  shall  be  executed  until  approved  by  the  governor  of  the  State  or  Terri- 
tory concerned,  or  by  the  commanding  general  of  the  National  Guard  of  the 
District  of  Columbia. 

Sec.  108.  In  the  National  Guard,  not  in  the  service  of  the  United  States, 
presidents  of  courts-martial  and  summary  court  officers  shall  have  power  to 
issue  warrants  to  arrest  accused  persons  and  to  bring  them  before  the  court 
for  trial  whenever  such  persons  shall  have  disobeyed  an  order  in  writing  from 
the  convening  authority  to  appear  before  such  court,  a  copy  of  the  charge  or 
charges  having  been  delivered  to  the  accused  with  such  order,  and  to  issue 
subpoenas  and  subpoenas  duces  tecum  and  to  enforce  by  attachment  attendance 
of  witnesses  and  the  production  of  books  and  papers,  and  to  sentence  for  a 
refusal  to  be  sworn  or  to  answer  as  provided  in  actions  before  civil  courts. 

All  processes  and  sentences  of  said  courts  shall  be  executed  by  such  civil 
officers  as  may  be  prescribed  by  the  laws  of  the  several  States  and  Terri- 
tories, and  in  any  State  where  no  provision  shall  have  been  made  for  such 
action,  and  in  the  Territories  and  the  District  of  Columbia,  such  processes  and 
sentences  shall  be  executed  by  a  United  States  marshal  or  his  duly  appointed 
deputy,  and  it  shall  be  the  duty  of  any  United  States  marshal  to  execute  all 
such  processes  and  sentences  and  make  return  thereof  to  the  officer  issuing  or 
imposing  the  same.     (Act  of  June  3,  1916,  39  Stat.,  208,  209.) 


APPENDIX  3. 

[front.] 
Charge  sheet.  No.  in  summary  court  record 


(Place.)  (Date.) 


(Sixrname.)  (Christian  name.)  (Rank  and  organization.) 

Date  current  enlistment,  — ■ — ■.        Rate  of  pay, 

Previous  service, 


(Give  dates,  with  character  given  on  each  discharge.) 

.-^         -  f  Arrest: .  No.  of  previous  convictions, ■ . 

Date  of  -^  „     ^  , 

I  Confinement: . 

Witnesses: 


Charge  — :  Violation  of  the article  of  war. 

Specification  — :  In  that,  etc. 

Form  No.  594,  A.  G.  O. 


[back.] 

Pleas: .  j.        .    |  Arrest:  

Findings: .  I  Confinement: 

Sentence: — . 

Maximmn  punishment: 


Note. — The  above  spaces  are  intended  only  for  use  for  record  purposes  at  the 
headquarters  of  the  officer  appointing  the  special  or  general  court-martial,  and 
it  is  not  intended  that  they  shall  be  filled  in  by  summary  courts,  trial  judge  advo- 
cates, etc. 

INSTRUCTIONS. 

(M.  C.  M.,  pars.  75,  76,  79,  306.) 

1.  Submission  of  charges. — ^All  charges  for  trial  by  court-martial  will  be  pre- 
pared  in  triplicate,  using  the  prescribed  charge  sheet  as  a  first  sheet  and  using 
such  additional  sheets  of  ordinary  paper  as  are  required.  They  will  be  accom- 
panied— 

(a)  Except  when  trial  is  to  be  had  by  summary  court,  by  a  brief  statement 
of  the  substance  of  all  material  testimony  expected  from  each  material  witness, 
both  those  for  the  prosecution  and  those  for  the  defense,  together  with  all 
available  and  necessary  information  as  to  any  other  actual  or  probable  testi- 
mony or  evidence  in  the  case;  and 

(6)  In  the  case  of  a  soldier,  by  properly  authenticated  evidence  of  coi*- 
victions,  if  any,  of  an  offense  or  offenses  committed  by  him  during  his  current 
enlistment  and  within  one  year  next  preceding  the  date  of  the  alleged  com- 
mission by  him  of  any  offense  set  forth  in  the  charges. 

They  will  be  forwarded  by  the  officer  preferring  them  to  the  officer  imme- 
diately exercising  summary  court-martial  jurisdiction  over  the  command  to 

333 


334  MANUAL  FOR  COURTS- MARTIAL. 

which  the  accused  belongs,  and  will  by  him  and  by  each  superior  commander 
into  whose  hands  they  may  come  either  be  referred  to  a  court-martial  within 
his  jurisdiction  for  trial,  forwarded  to  the  next  superior  authority  exercising 
court-martial  jurisdiction  over  the  command  to  which  the  accused  belongs  or 
pertains,  or  otherwise  disposed  of  as  circumstances  may  appear  to  require. 

2.  Investigation  of  charges. — If  the  officer  immediately  exercising  summary 
court-martial  jurisdiction  over  the  command  to  which  the  accused  belongs  or 
pertains  decides  to  forward  the  charges  to  superior  authority,  he  will,  before 
so  doing,  either  carefully  investigate  them  himself  or  will  cause  an  officer  other 
than  the  officer  preferring  the  charges  carefully  to  investigate  them  and  to 
report  to  him,  orally  or  otherwise,  the  result  of  such  investigation.  The  officer 
investigating  the  charges  will  afford  to  the  accused  an  opportunity  to  make 
any  statement,  offer  any  evidence,  or  present  any  matter  in  extenuation  that  he 
may  desire  to  have  considered  in  connection  with  the  accusations  against  him. 
If  the  accused  desires  to  submit  nothing,  the  indorsement  will  so  state.  In 
his  indorsement  forwarding  the  charges  to  superior  authority  he  will  include: 

(a)  The  name  of  the  officer  who  investigated  the  charges; 

(&)  The  opinion  of  both  such  officer  and  himself  as  to  whether  the  several 
charges  can  be  sustained ; 

(c)  The  substance  of  such  material  statement,  if  any,  as  the  accused  may 
have  voluntarily  made  in  connection  with  the  case  during  the  investigation 
thereof ; 

(d)  A  summary  of  the  extenuating  circumstances,  if  any,  co'nnected  with 
the  case;  and 

(e)  His  recommendation  of  action  to  be  taken. 

3.  Disposition  of  copies  of  charges. —  (a)  When  trial  is  had  by  summary 
court  the  charges  will  be  completed  as  the  record  of  trial,  a  copy  thereof 
will  be  completed  as  a  copy  of  the  summary  court  record  for  the  company  or 
other  commander,  and  the  other  copy  will,  with  the  least  practicable  delay 
after  action  has  been  taken  on  the  sentence,  be  completed  and  transmitted 
as  the  required  report  of  trial  to  the  officer  exercising  general  court-martial 
jurisdiction  over  the  command,  there  to  be  filed  in  the  office  of  the  judge 
advocate  for  a  period  of  two  years,  at  the  end  of  which  time  it  may  be 
destroyed;  and 

( b )  When  trial  is  to  be  had  by  special  or  general  court-martial  the  charges 
and  one  copy  thereof  will  be  referred  to  the  trial  judge  advocate,  the  copy 
to  be  furnished  by  him  to  the  accused  or  his  counsel,  and  the  other  copy 
will  be  used  for  record  purposes  in  the  office  of  the  officer  appointing  the  trial 
court,  the  top  fold  of  the  copy  of  the  charge  sheet,  in  case  of  trial  by  general 
court-martial,  being  detached  at  the  proper  time  and  forwarded  with  the  record 
of  trial  to  the  Judge  Advocate  General  of  the  Army. 

4.  Disposition  of  evidence  of  previous  convictions. — (a)  The  evidence  of  a 
previous  conviction  referred  to  a  summary  court  or  to  the  judge  advocate  of  a 
special  court  will,  after  trial,  be  returned  by  him  to  the  appointing  authority 
and  will,  after  action  by  the  latter  on  the  case,  be  returned  to  the  company 
or  detachment  to  which  it  pertains ; 

(6)  The  evidence  of  a  previous  conviction  referred  to  the  judge  advocate 
of  a  general  court-martial  will,  if  a  company  record,  after  trial  be  returned 
by  him  direct  to  the  company  or  detachment  to  which  it  pertains,  and  a  cer- 
tified copy  thereof  vdll  be  attached  to  the  record  of  trial. 

Note. — This  form  supersedes  the  blank  form  for  record  of  trial  by  summary 
court  (Form  No.  99,  A.  G.  O.),  the  blank  form  for  report  of  trial  by  summary 
court  (Form  No.  59,  A.  G.  O.),  and  the  blank  form  for  statement  of  service 
(Form  No.  15,  A.  G.  O.). 


APPENDIX  4. 

FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 
INSTRUCTIONS. 

The  forms  for  charges  and  specifications  set  forth  below  constitute  a  general 
guide  for  use  in  the  drafting  of  charges  and  specifications  under  the  several 
articles  of  war,  not  only  for  offenses  specifically  provided  for  in  the  forms  but 
also  for  like  offenses  not  specifically  mentioned  therein.  In  preparing  charges 
the  following  general  rules  should  be  observed : 

(a)  When  there  is  more  than  one  charge  the  charges  will  be  numbered,  using 
the  Roman  numerals,  viz,  I,  II,  etc. 

(b)  When  there  is  more  than  one  specification  under  a  charge  the  specifica- 
tions under  that  charge  will  be  numbered,  using  the  Arabic  numerals,  viz, 
1,  2,  etc. 

(c)  The  form  provided  for  the  charge  will  not  in  any  case  be  abbreviated, 
added  to,  or  deviated  from. 

(d)  The  several  forms  provided  for  specifications  will  be  added  to  or  devi- 
ated from  when  circumstances  require  such  addition  or  deviation,  and  in  charg- 
ing minor  offenses  with  a  view  to  trial  by  summary  court  they  may  in  proper 
cases  be  abbreviated. 

(e)  The  words  inclosed  in  parentheses  or  brackets,  or  both,  in  the  forms  for 
specifications  may  or  may  not  be  used,  as  circumstances  require. 

(/)  The  blanks  inclosed  in  parentheses  in  the  forms  for  specifications  indi- 
cate that  a  proper  substitute  may  be  used. 

(g)  The  name  of  the  accused  as  entered  in  the  specification  should,  except 
in  a  case  in  which  the  jurisdiction  of  the  court  over  the  person  is  not  dependent 
upon  his  being  a  person  subject  to  military  law  (e.  g.  see  A.  W.,  81  and  82),  be 
accompanied  by  such  descriptive  language  as  will  show  that  he  is  a  person 
subject  to  military  law  and  therefore  subject  to  the  jurisdiction  of  the  court, 

as  "  Pvt.  John  Doe,  Company , Infantry  " ;  "  Pvt.  John  Doe, 

United  States  Marine  Corps,  detached  for  service  with  the  Army,  by 


order  of  the  President " ;  "  John  Doe,  a  retainer  to  the  camp  " ;  "  John  Doe,  a 
person  accompanying  the  Army  of  the  United  States  without  the  territorial 
jurisdiction  of  the  United  States  "  ;  "  John  Doe,  a  person  serving  with  the  Army 
of  the  United  States  in  the  field  "  ;  "  John  Doe,  a  general  prisoner  " ;  *'  John  Doe, 
a  person  under  a  sentence  adjudged  by  a  court-martial." 

(h)  The  place  and  date  of  the  commission  of  the  alleged  offense  will  ordi- 
narily be  stated  in  the  body  of  the  specification  and  not  in  a  separate  line  at  the 
end  thereof. 

(i)  The  words  "officer  preferring  charge,"  or  words  of  similar  import,  will 
not  be  used  in  connection  with  the  signature  of  the  officer  who  subscribes  the 
charges. 

SPECIMEN  CHARGES. 

[To  be  placed  on  charge  sheet,  Appendix  3.] 

CHARGE  I:  Violation  of  the  54th  Article  of  War. 

Specification:  In  that  Pvt.  Richard  Roe,  Company  A,  Second  Infantry,  alias 
Pvt.  John  Doe,  Company  F,  Twenty-ninth  Infantry,  did,  without  a  discharge 
from  said  Company  A,  Second  Infantry,  procure  himself  to  be  enlisted  in  the 

335 


336  MANUAL   FOE   COURTS-MARTIAL. 

military  service  of  the  United  States  at  Fort  Jay,  N.  Y.,  on  the  24th  day  of 
July,  1917,  under  the  name  of  John  Doe,  by  willfully  concealing  from  Capt. 
William  White,  Medical  Corps,  a  recruiting  officer,  the  fact  of  his  prior  enlist- 
ment in  satd  Company  A,  Second  Infantry,  and  has  at  Fort  Jay,  N.  Y.,  since 
said  date,  received  allowances  under  said  enlistment. 

CHARGE  II:  Violation  of  the  58th  Article  of  War. 

Specification:  In  that  Pvt.  Richard  Roe,  Company  A,  Second  Infantry,  alias 
Pvt.  John  Doe,  Company  F,  Twenty-ninth  Infantry,  did,  at  Fort  Jay,  N.  Y.,  on 
or  about  the  6th  day  of  March,  1917,  desert  the  service  of  the  United  States,  and 
did  remain  absent  in  desertion  until  he  was  apprehended  at  Fort  Jay,  N.  Y.,  on 
or  about  July  24,  1917. 

CHARGE  III:  Violation  of  the  96th  Article  of  War. 

Specification  1:  In  that  Pvt.  Richard  Roe,  Company  A,  Second  Infantry,  alias 
Pvt.  John  Doe,  Company  F,  Twenty-ninth  Infantry,  did,  at  Fort  Jay,  N.  Y.,  on 
or  about  March  6,  1917,  strike  in  the  face  with  his  fist  Pvt.  John  W.  Davis, 
Third  Company,  Fort  Hamilton,  then  a  sentinel  in  the  execution  of  his  duty. 

Specification  2:  In  that  Pvt.  Richard  Roe,  Company  A,  Second  Infantry,  alias 
Pvt.  John  Doe,  Company  F,  Twenty-ninth  Infantry,  having  at  Fort  Jay,  N.  Y., 
on  or  about  the  6th  day  of  March,  1917,  received  a  lawful  order  to  halt  from 
Pvt.  John  W.  Davis,  Third  Company,  Fort  Hamilton,  then  a  sentinel  in  the 
execution  of  his  duty,  did  willfully  disobey  the  same. 

John  Jones, 

Captain,  C.  A.  C. 
FORMS. 

[See  instructions  on  p.  335.] 

CHARGE:  Violation  of  the  54th  Article  of  War. 

1.  Specification:  In  that  Pvt. ,  Company ,  Infantry,  alioti 

Pvt.  ,  Company  ,  Infantry,  did,  without  a  discharge  from 

said  Infantry,  procure  himself  to  be  enlisted  in  the  military  service  of 

the  United  States,  at ,  on  the day  of ,  19 — ,  under  the  name 

of ,  (by  willfully  and  falsely  representing  to ,  a  recruiting  officer, 

that  he  had  never  been  enlisted  in  the  service  of  the  United  States  and)   by 

willfully  concealing  from   ( ,  a)    (said)   recruiting  oflScer   (,)  the  fact  of 

his  prior  enlistment  in  said  Infantry ;   and  has,  at  and  since 

said  date,  received  (pay)  (allowances)  (pay  and  allowances)  under  said 
enlistment. 

2.  Specification:  In  that did  procure  himself  to  be  enlisted  in  the  mili- 
tary service  of  the  United  States,  at ,  on  the day  of ,  19 — , 

(by  willfully  and  falsely  representing  to ,  a  recruiting  oflficer,  that  he  had 

never  been  discharged  from  the  service  of  the  United  States  and)  by  willfully 

concealing  from  ( ,  a)   (said)  recruiting  officer  the  fact  that  (,  under  the 

name   of  ,)    he   had  been   discharged    [(dishonorably   from   ,   on 

,  pursuant  to  sentence  of  court;martial )    (from  ,  on  ,  by 

reason  of )  ]  [convicted  of  a  felony,  to  wit, ]  [ ]  ;  and  has,  at 

and  since  said  enlistment,  received  (pay)  (allowances)  (pay  and  allow- 
ances) thereunder. 

3.  Specification:  In  that  did  procure  himself  to  be  enlisted  in  the 

military  service  of  the  United  States,  at  ,  on  the day  of  , 

19 — ,  [by  willfully  and  falsely  representing  to ,  a  recruiting  oflScer,  that 

he   had   never  been   imprisoned   in  any    (jail)     (reformatory)     (penitentiary) 

and]  by  willfully  concealing  from  ( ,  a)    (said)  recruiting  officer   (,)  the 

fact  that  (,  under  the  name  of ,)  he  had  been  imprisoned  in  a  (reform- 
atory)   (jail)    (penitentiary)   under  a  sentence  of  a  civil  court;  and  has,  at 


APPENDICES.  337 

and  since  said  enlistment,  received  (pay)    (allowances)    (pay  and  allow- 
ances) thereunder. 

4.  Specification:  In  that  did  procure  himself  to  be  enlisted   in  the 

military  service  of  the  United  States,  at  ,  on  the day  of  , 

19 — ,  (by  willfully  and  falsely  representing  to  — ,  a  recruiting  officer,  that 

he  was  years  of  age  and)    by  willfully  concealing  from    ( ,   a) 

(said)    recruiting  officer    (,)    the  fact  that  he  was   then    (under   the   age  of 

eighteen  years)    (a  married  man)    ( )  ;  and  has,  at and  since  said 

enlistment,  received   (pay)    (allowances)    (pay  and  allowances)   thereunder. 

CHARGE:  Violation  of  the  55th  Article  of  War. 

5.  Specification:  In  that did  at ,  on ,  unlawfully  (enlist) 

(muster)    into   the   military   service   of   the   United   States   one  ,   who, 

as  he,  the  said  ,  then  well  knew,  was   (a)    (an)    (insane)    (intoxicated) 

( )  person   (who  had  been  convicted  of  a  felony)    (under  the  age  of  16 

years)    ( ). 

CHARGE:  Violation  of  the  56th  Article  of  War. 

6.  Specification:  In  that did,  at  ,  on  the  day  of , 

19 — ,  (sign)    (allow to  sign)    (direct to  sign)  the  muster  roll  of 

,  for  the  period  to  ,  19 — ,  he,  the  said  ,  then  well 

knowing  that  the  said  muster  roll  contained  the  name  of as  soldier  and 

a  member  of  said  company  and  as  present  for  duty  therewith,  and  that  the 

said —  was  (not  a  soldier)   (not  a  member  of  said  company)    (not  present 

for  duty)  but  (a  civilian)   (a  member  of  company )   (wholly  absent  from 

military  duty). 

7.  Specification:  In  that did,  at ,  on  the day  of , 

19 — ,    (sign)    (allow  to  sign)    (direct  to  sign)   the  muster  roll 

of ,  for  the  period to ,  19 — ,  he,  the  said  ,  then  well 

knowing  that  said  muster  roll  contained  a  statement  that ,  a  private  of 

said  ,  was  present  and  mustered,  and  that  said  statement  was  false  in 

that  said was  then  absent  without  leave. 

8.  Specification:  In  that did,  at ,  on  the day  of  , 

19 — ,  falsely  muster  as   (present)    ( )   ,  when  he  well  knew  that 

said was  not  (present)    ( ),  but  (absent  with  leave)    ( ). 

9.  Specification:  In  that did,  at  ,  on  the day  of  , 

19 — ,  falsely  muster  as  a  of  Company  ,  th  Infantry,  one 

,  who,  as  he,  the  said  — ■ ,  then  well  knew,  was  not  a  soldier,  but  (a 

civilian)    ( ). 

10.  Specification:  In  that did,  at ,  on  the day  of , 

19 — ,  sign  the  muster  roll  of  — ,  for  the  period to ,  19 — ,  know- 
ing at  the  time  that  said  muster  roli  contained  a  statement  that  was 

(present)   ( ),  and  knowing  at  the  time  that  said  was  not   (pres- 
ent)  ( ),  but  (absent  with  leave)    ( ). 

11.  Specification:  In  that did,  at  ,  on  or  about  the  day 

of  — ,  19—,  wrongfully  take  from  (the  sum  of  $ )    ( ), 

as  a  consideration  to  him  ,  for  knowingly  permitting  the  muster-in  roll 

of on  the  mustering  in  of  that to  falsely  show  as   (mus- 
tered in)    ( ),  ,  who,  as  he,  the  said  ,  then  well  knew,  was 

(were)  not   (mustered  in)    ( ). 

12.  Specification:  In  that did,  at ,  on  or  about  the  day 

of ,  19 — ,  wrongfully  take  from  the  sum  of  $ ,  as  a  consid- 
eration to  him  ,  for  allowing  the  muster  roll  of  ,  for  the  period 

of to ,  19 — ,  to  show as  (present  and  mustered)    ( ), 

when,  as  he,  the  said ,  then  well  knew,  he  (they)  was  (were)  not  present 

and  mustered  as  shown  on  said  muster  roll. 

91487°— 17 23 


338  MANUAL   FOR   COURTS-MARTIAL. 

CHARGE:  Violation  of  the  57th  Article  of  War. 

13.  Specification:  In  that ,  being  in  command  of ,  and  it  being  his 

duty  to  render  to  the a  return  of  the  state  of  (the  troops  under  his  com- 
mand)   (the thereto  belonging)  for  the  period to  ,  did,  at 

,  on  the  day  of  ,  19 — ,  make  a  return  of  for  said 

period,  which  he  then  knew  to  be  false  in  that  it  showed as  (absent  with 

leave)   ( ),  whereas  the  said was,  as  he,  the  said ,  then  well 

knew,  (absent  without  leave)   ( ). 

14.  Specification:  In  that  ,  being  in  command  of  ,  and  it  being 

his  duty  to  render  to  the a  return  of  the  state  of  (the  troops  under  his 

command)    (the thereto  belonging)  for  the  period to  ,  die 

(on  and  after  the  day  of  ,  19 — )    (from  until  ), 

through  (neglect)   (design),  omit  to  render  such  return. 

CHARGE:  Violation  of  the  58th  Article  of  War. 

15.  Specification:  In  that did,  at ,  on  or  about  the  day 

of ,  19 — ,  attempt  to  desert  the  service  of  the  United  States  by  (seeking 

passage  to on  the  steamship )   ( ). 

16.  Specification:  In  that  did,  at  ,  on  or  about  the  djiy 

of ,  19 — ,  in  the  (execution  of  a  conspiracy  to  desert  the  service  of  the 

United  States  previously  entered  into  with  and  )    (presence  of 

,   which   the  forces  of  which  he  was  a   member  were  then  opposing) 

attempt  to  desert  the  service  of  the  United  States  by  (seeking  passage  to 

on  the  steamship )  ( ).    (C.  M.  C.  M.  No.  — ,  Apr.  —,1917.) 

17.  Specification:  In  that did,  at ,  on  or  about  the day  of 

,  19 — ,  desert  the  service  of  the  United  States,  and  did  remain  absent  in 


desertion  until  he   (was  apprehended)    (surrendered  himself)   at on  or 

about  the day  of ,  19 — . 

18.  Specification:  In  that did,  at on  or  about  the day  of 

,  19 — ,  in  the   (execution  of  a  conspiracy  to  desert  the  service  of  the 

United  States  previously  entered  into  with  and  )    (presence  of 

,  which  the  forces  of  which  the  accused  was  a  member  were  then  oppos- 
ing), desert  the  service  of  the  United  States  and  did  remain  absent  in  desertion 

until  he  (was  apprehended)    (surrendered  himself)  at  on  or  about  the 

day  of ,  19—. 

19.  Specification:  In  that and  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  acting  jointly,  in  pursuance  of  a  common  intent  and 


in  the  execution  of  a  conspiracy  to  desert  the  service  of  the  United  States  previ- 
ously entered  into  by  them  (and  in  the  presence  of ,  which  the  forces  ol 

which  they  were  members  were  then  opposing),  desert  the  service  of  the  United 
States  and  did  remain  absent  in  desertion  until  they  (were  apprehended)  (sur- 
rendered themselves)  at on  or  about  the day  of ,  19 — . 

CHARGE:  Violation  of  the  59th  Article  of  War. 

20.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of ,  19 — ,  (advise)   (persuade) to  desert  the  service  of  the  United 

States  by  (saying  to  him ,  or  words  to  that 

effect)   (offering  him  a  position  as at ). 

21.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of  ,  19 — ,  knowingly  assist  to  desert  the  service  of  the  United 

States    (by   supplying   him    with   a   railroad    ticket   from   to   ) 

( ),  he,  the  said ,  then  well  knowing  that  the  said intended 

to  use  the   (railroad  ticket)    ( )   so  supplied  him  in  furtherance  of  his 

plans  to  desert. 


APPENDICES.  339 

CHARGE:  Violation  of  the  60th  Article  of  War. 

22.  Specification:  In  that  ,  having  discovered  that  ,  a  soldier 

In  his  command,  was  a  deserter  from  the   (military  service)    (naval  service) 

(Marine  Corps)  did,  at ,  from  about  the  day  of ,  to  about 

the  day  of  ,  19 — ,  retain  said  deserter  in  his  command  without 

informing  superior  authority  or  the  commander  of  the  organization  to  which 
the  deserter  belonged  of  the  presence  of  said  deserter  in  his  command. 

CHARGE:  Violation  of  the  61st  Article  of  War. 

23.  Specification:  In  that ,  did,  at ,  without  proper  leave,  absent 

himself  from  his from  about ,  19 — ,  to  about ,  19 — . 

24.  Specification:  In  that did,  at ,  on  or  about  the  day 

of ,  19 — ,  fail  to  repair  at  the  fixed  time  to  the  properly  appointed  place 

(of  assembly)  for . 

25.  Specification:  In  that  did,  at  ,  on  or  about  the  — day 

of  ,  19 — ,  without  proper  leave,  go  from  the  properly  appointed  place 

(of  assembly)  for ,  after  having  repaired  thereto  for  the  performance  of 

said  duty. 

CHARGE:  Violation  of  the  62d  Article  of  War. 

26.  Specification:  In  that did,  at ,  on  or  about  the  day 

of ,  19 — ,  use  (orally  and  publicly)    ( )  the  following  (contemptu- 
ous)    (disrespectful)     (contemptuous    and    disrespectful)    words    against    the 

of  the  (United  States)  ( in  which  he  was  then  quartered),  to  wit : 

,  or  words  to  that  effect. 

CHARGE:  Violation  of  the  63d  Article  of  War. 

27.  Specification:  in  that  did,  at  ,  on  or  about  the  day 

of  ,  19 — ,  behave  himself  with  disrespect  toward  ,  his  superior 

ofllcei',  by  (saying  to  him  ,  or  words  to  that 

effect)    (contemptuously  turning  from  and  leaving  him  while  he  was  talking 
to  him  the  said )   ( ). 

CHARGE:  Violation  of  the  64th  Article  of  War. 

28.  Specification:  In  that  ,  having  received  a  lawful  command  from 

,  his  superior  officer,  to  ,  did  at  ,  on  or  about  the  

day  of ,  19 — ,  willfully  disobey  the  same. 

29.  Specification:  In   that  did,   at  ,   on  or   about  the   

day  of  ,  19 — ,  willfully   (draw)    (lift  up)   a  against  ,  his 

superior  officer,  who  was  then  in  the  execution  of  his  office. 

30.  Specification:  In  that  did,  at ,  on  or  about  the  day 

of ,  19 — ,  willfully  strike ,  his  superior  officer,  who  was  then  in  the 

execution  of  his  office,  (in)   (on)  the ,  with  (a)   (his)  . 

[Note. — For  assaults  upon  officers  amounting  to  felonies  see  A.  W.  93.] 

CHARGE:  Violation  of  the  65th  Article  of  War. 

31.  Specification:  In  that ,  having  received  a  lawful  order  from , 

who  was  then  in  the  execution  of  his  office,  to  ,  did  at  ,  on  or 

about  the day  of ,  19 — ,  willfully  disobey  the  same. 

32.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of ,19—,  (attempt)    (threaten)  to  (strike)    ( )  [(In)    (on) 

the 1  with  (a)    (his)  ,  while  said  was  in  the  execution  of 

his  office. 

33.  Specification:  In  that did,  at  ,  on  or  about  the  day 

of  ,  19 — ,  behave  in  an   (insubordinate)    (disrespectful)    (insubordinate 

and  disrespectful)   manner  toward  ,  who  was  then  in  the  execution  of 

his  office,  by  (saying  to  him ,  or  words  to  that  effect)   ( ). 


340  MANUAL   FOR   COUETS-MAETIAL. 

34.  Specification:  In  that did,  at  ,  on  or  about  the  day 

of ,  19 — ,  willfully  (strike)  (assault)  ,  who  was  then  in  the  execu- 
tion of  his  office,  by him  (in)    (on)  the with  (a)    (his)  . 

[Note. — For  assaults  upon  noncommissioned  officers  amounting  to  felonies 
see  A.  W.  93.] 

CHARGE:  Violation  of  the  66th  Article  of  War. 

35.  Specification:  In  that  did,  at  ,  on  or  about  the day 

of ,  19 — ,  attempt  to  create  a  mutiny  in by  urging  the  members  of 

said   to    refuse    to    obey    the    order    of   ,    their    X commanding) 

(superior)  officer,  to . 

36.  Specification:   In  that did,  at ,  on  or  about  the day 

of  ,   19 — ,  cause  a   mutiny  in  by   unlawfully   assuming  control 

over  about  soldiers  of  said  command,   and  in  the  execution  of  such 

control  causing  said  soldiers  to  disregard  and  defy  the  lawful  orders  of 
,  their  (commanding)   (superior)  officer^  to  (assemble  for  drill)   ( ). 

37.  Specification:   In  that did,  at ,  or  on  about  the day 

of ,  19 — ,  voluntarily  join  in  a  mutiny  which  had  been  begun  in  

against  the  authority  of  ,  the  commanding  officer  thereof,  and  did,  in 

combination   with   sundry   other   members   of  said   assembled   on   the 

(parade  ground)  ( ),  refuse  to  (disperse)  (do  any  further  duty)  (as- 
semble for  drill)   ( ). 

CHARGE:  Violation  of  the  67th  Article  of  War. 

38.  Specification:  In  that ,  being  at and  knowing  on  the 

day  of ,  19 — ,  that  certain  members  of proposed  and  intended  to 

begin  and  join  in  a  mutiny  against  the  commanding  officer  of  that  ,  at 

o'clock   (a.)    (p.)   m.  on  the.  following  day,  di,d  fail   (wholly)   to  give 

information  of  said  intended  mutiny  to  his  commanding  officer  (until  the  hour 
of on  the day  of ,  19 — ). 

39.  Specification:   In  that did,  at ,  on  or  about  the  day 

of  ,  19 — ,  join  with  other  members  of  the  and  sundry  citizens 

in  an  attempt  to  break  into  a  jail  and  release  a  prisoner,  did  assault  and  beat 
the  police  officers  and  other  civil  authorities,  and  did  commit  other  disorders 

until  overpowered  and  restrained  by  a  detachment  of  sent  from  the 

post  of and  compelled  to  return  to  his  quarters. 

40.  Specification:   In  that  ,  being  present  at  a  mutiny  among  the  sol- 
diers of against  the  authority  of ,  the  commanding  officer  thereof, 

did  fail  to  use  his  utmost  endeavor  to  suppress  the  same,  in  that,  having  com- 
manded the  men  of  his  own  company  to  return  to  their  quarters,  he  took  no 
means  to  compel  their  obedience  or  reduce  them  to  discipline  upon  their  refusal 
to  obey  said  command. 

CHARGE:  Violation  of  the  68th  Article  of  War. 

41.  Specification:   In  that ,  being  engaged  in  a  (quarrel)    (fray)    (dis- 
order)  and  having  been  ordered  into   (arrest)    (confinement)  by  ,  did, 

at ,  on  or  about  the day  of ,  19 — ,  [(refuse  to  obey)   (draw 

a upon)  the  said  ]   [threaten  the  said by  (saying  to  him 

,  or  words  to  that  effect)    ( )]. 

CHARGE:  Violation  of  the  69th  Article  of  War. 

42.  Specification:  In  that  ,  having  been  placed  in   (arrest)    (confine- 
ment) by  his  (commanding  officer)    ( )  on  account  of  being  charged  with 

a  (crime)   (offense),  did  at ,  on  or  about  the day  of ,  19 — , 

(break  his  arrest)  (escape  from  said  confinement)  before  he  was  set  at  libei  ,y 
by  proper  authority. 


APPENDICES.  341 

CHARGE:  Violation  of  the  71st  Article  of  War. 

43.  Specification:  In  that  ,  being  on  duty  as  at  on  or 

about  the day  of ,  19 — ,  did  refuse  to  (receive)  (keep)  one , 

a  prisoner  duly  committed  to  his  charge  by  ,  who,  at  the  time  of  com- 
mitting said  prisoner,  delivered  to  the  said an  account  in  writing,  signed 

by  himself,  of  the  (crime)   (offense)  charged  against  said  prisoner. 

CHARGE:  Violation  of  the  72d  Article  of  War. 

44.  Specification:  In  that  ,    (having  been)    (being)    on  duty  as  com- 
mander of  the  guard  at ,  did,  on  or  about  the day  of ,  19 — , 

fail  to  report  in  writing  to  the  commanding  officer  of  that  (as  soon  as 

relieved   from   his   guard)     (within   24   hours   after   the  confinement   of   said 

prisoner)  the  name  of ,  a  prisoner  committed  to  his  charge,  the  offense 

charged  against  him,  and  the  name  of  the  officer  committing  him. 

CHARGE:  Violation  of  the  73d  Article  of  War. 

45.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of —,19 — ,  [without  proper  authority  release]  [through  (design)   (neglect) 

(suffer)  ] ,  a  prisoner  duly  committed  to  his  charge  to  escape. 

CHARGE:  Violation  of  the  74th  Article  of  War. 

46.  Specification:  In  that  ,  being  at  the  time  the  commanding  officer 

at  ,  and  an  application  having  been  duly  made  to  him  by  the  of 

for  the  (delivery)    (apprehension  and  securing)   of  ,  a   (soldier) 

(officer)   under  his  command,  who  was  accused  of  a   (crime)    (offense)    com- 
mitted against  the  laws  of ,  did,  at ,  on  the day  of , 

19 — ,  refuse  to   (deliver  said  to  said  of  )    (aid  the  said 

of in  apprehending  and  securing  the  said ). 

CHARGE:  Violation  of  the  75th  Article  of  War. 

47.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of ,  19 — ,  in  disregard  of  his  duty  and  shamefully  (abandon)    (deliver  up 

to  the  enemy)  , which  (it  was  his  duty)   (he  had  been  ordered  by , 

his  proper  superior  officer),  to  defend. 

48.  Specification;  In  that  ,  while  on  duty  before  the  enemy,  did  at 

,  on  the day  of ,  19—-,  cast  away  his  (rifle)    (ammunition) 


( ). 

49.  Specification:  In  that ,  being  (present  with)    (in  command  of)  his 

while  it  was  engaged  with  the  enemy,  did  at  ,  on  or  about  the 

day  of  ,  19 — ,  abandon  the  said  and   (seek  safety  in  the 

rear)   ( ),  and  did  fail  to  rejoin  it  until  (the  engagement  was  concluded) 

( ). 

50.  Specification:  In  that did,  while  on  duty  before  the  enemy,  cause 

a  false  alarm  in  the  (camp)    (garrison)    (quarters)    ( )  at  ,  on  or 

about  the day  of ,  19 — ,  by  needlessly  and  without  authority  caus- 
ing the  call  to  arms  to  be  sounded. 

51.  Specification:  In  that  did,  while  on  duty  before  the  enemy,  quit 

his  (company)  (post)  ( ),  at ,  on  the day  of ,  19 — ,  for 

the  purpose  of  (pillaging)  (plundering)  (pillaging  and  plundering),  and  did  com- 
mit plunder  and  pillage  on  the  property  of  one ,  a  citizen,  by  forcibly  en- 
tering the  house  of  said ,  against  his  will,  and  taking  therefrom  and  appro- 
priating money  and  effects  of  the  said of  the  value  of  $ . 

52.  Specification:  In  that did,  at  ,  on  or  about  the  day 

of ,  19 — ,  run  away  from  his  (company)    ( ),  which  was  then  en- 


342  MANUAL  FOR   COURTS-MARTIAL. 

gaged  with  the  enemy,  and  did  not  return  tliereto  until  (after  the  engagement 
had  been  concluded)    ( ). 

53.  Specification:  In   that  ,   being   an    (officer)     (soldier)    of   a   force 

charged  with  the  duty  of  defending  against  an  enemy  then  before  it, 

did  at  ,  on  or  about  the  day  of  ,  19 — ,   (induce)    (seek  to 

Induce)   (soldiers)   (soldiers  and  officers)  of  that  force  to  shamefully  (abandon) 

(deliver  up)  to  the  enemy  that  ,  which  it  was  their  duty  to  defend,  by 

saying  to  said  (soldiers)   (soldiers  and  officers)  ,  or  words  to  that  effect. 

54.  Specification;  In  that did,  at  ,  on  or  about  the  day 

of ,  19 — ,  say  to ,  who  was  then,  with  his  company,  engaged  with 

the  enemy,  ,   or  words  to  that  effect,  thereby    (inducing)    (seeking  to 

induce)   said  to  [(run  away  from)    (shamefully  abandon)  his   (post)] 

( ). 

55.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of ,  19 — ,  say  to ,  who  was  then  on  outpost  duty  before  the  enemy, 

— ,  or  words  to  that  effect,  thereby    (inducing)    (seeking  to  induce)   the 

said to  [run  away  from)   (abandon)  his  (post)]  ( ). 

CHARGE:  Violation  of  the  76th  Article  of  War. 

56.  Specification:  In  that ,  being  an  (officer)    (soldier)  under  the  com- 
mand of ,  commanding  the  (fort)    (post)    (camp)    (guard)    ( )   of 

,  which  was  then  threatened  by  the  enemy,  did,  at  ,  on  or  about 

the day  of ,  19 — ,  in  combination  with  other  (officers)    (soldiers) 

(officers  and  soldiers)  of  said  command,  by compel  said to  (sur- 
render)   (abandon)  said  (fort)    (post)    (camp)    (guard)    ( )  of to 

the  enemy. 

57.  Specification:  In  that  ,  ,  and  ,  being   (officers)    (sol- 
diers)   (officers  and  soldiers)    under  the  command  of  ,  who  was  then 

commanding  the  (fort)   (post)   (camp)   (guard)   ( )  of ,  which  was 

then  threatened  by  the  enemy,  did,  at  ,  on  or  about  the  day  of 

,  19 — ,  acting  jointly  and  in  concert,  refuse  to  perform  further  duty  in 

defense  of  said  (fort)   (post)   (camp)   (guard)   ( )  of ,  and  thereby 

compel  the  said to  (abandon  it)  (give  it  up)  to  the  enemy. 

CHARGE:  Violation  of  the  77th  Article  of  War. 

58.  Specification:  In  that ,  having  received  as  the  proper  (countersign) 

(parole)  the  word ,  did  at ,  on  or  about  the day  of , 

19 — ,  give  to  ,  a  person  to  whom  he  knew  it  was  his  duty  to  give  the 

proper  (countersign)   (parole),  the  different  word as  the  proper  (counter- 
sign)  (parole). 

59.  Specification:  In  that did,  at ,  on  or  about  the day  of 

,  19 — ,  make  known  the  (countersign)   (parole),  to  wit, ,  to , 

known  by  him, ,  to  be  a  person  not  entitled  to  receive  it. 

CHARGE:  Violation  of  the  78th  Article  of  War. 

60.  Specification:  In  that did,  at ,  on  or  about  the day  of 


,  19 — ,  violate  a  safeguard,  known  by  him  to  have  been  placed  over  the 

premises  occupied  by ,  at ,  by  (overwhelming  the  guard  posted  for 

the  protection  of  the  same  and  violently  entering  said  premises  and  committing 
waste  and  plunder  therein)   ( ). 

CHARGE:  Violation  of  the  79th  Article  of  War. 

61.  Specification:  In  that did,  at ,  on  or  about  the day  of 

,  19 — ,  wrongfully  appropriate  to  (his  own  use)    ( )  the  following 


APPENDICES.                                                         343 
public  property  taken  from  the  enemy,  viz : of  the  value  of  about  $ 


and  of  the  value  of  about  $ ,  and  all  of  the  total  value  of  about 

$ . 

62.  Specification:  In  that did,  at ,  on  or  about  the day  of 

,  19 — ,  neglect  to  secure  for  the  service  of  the  United  States  the  following 


property  which  had  been  taken  from  the  enemy,  viz:  of  the  value  of 

about  $ and  of  the  value  of  about  $ ,  and  all  of  the  total 

value  of  about  $ . 

CHARGE:  Violation  of  the  80th  Article  of  War. 

63.  Specification:  In  that  did,  at  ,  or  about  the  day 

of  ,  19 — ,  unlawfully    (buy)    (sell)    ( )    the  following  articles  of 

(captured)     (abandoned)    property,    namely:    of   the   value    of   about 

$ and of  the  value  of  about  $ ,  and  all  of  the  total  value  of 

about  $ ,  thereby   [(accepting)    (receiving)    (accepting  and  receiving)] 

[(profit)  (benefit)  (advantage)  (profit,  benefit  and  advantage)]  to  (himself) 
[ ,  his  (brother)   ( )]. 

64.  Specification:    In  that did,  at ,  on  or  about  the day 

of  ,   19 — ,  fail  to  give  notice  to  proper   authority   that  the   following 

(captured)    (abandoned)    property  had  come  into  his    (possession)    (custody) 

(control),  namely:  of  the  value  of  about  $ and  of  the 

value  of  about  $ ,  and  all  of  the  total  value  of  about  $ . 

65.  Specification:    In  that  did,  at  ,  on  or  about  the  day 

of  ,  19 — ,  fail  to  turn  over  to  the  proper  authority  without  delay  the 

following  (captured)  (abandoned)  property  which  had  come  into  his  (posses- 
sion)   (custody)    (control),  namely:  of  the  value  of  about  $ and 

of  the  value  of  about  $ ,  and  all  of  the  total  value  of  about  $ . 

CHARGE:  Violation  of  the  81st  Article  of  War. 

66.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of ,  19 — ,  inform  a  patrol  of  the  enemy's  forces  of  the  whereabouts  of  a 

military  patrol  of  the  United  States  forces. 

67.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  knowingly  (harbor)    (protect)    (harbor  and  protect)  ,  a 

person  whom  he,  the  said  ,  then  knew  to  be  a  member  of  the  enemy's 

forces,  and  who  was  then  being  sought  by  a  patrol  of  the  United  States  forces, 
by  (concealing  the  said  member  of  the  enemy's  forces  in  his  house)    ( ). 

68.  Specification:  In  that did,  at  ,  on  or  about  the  day 

of  ,   19 — ,   directly    (hold   correspondence  with)    (give  intelligence  to) 

(hold  correspondence  with  and  give  intelligence  to)  the  enemy  by  writing  and 

transmitting  secretly  through  the  lines  to  one ,  whom  he,  the  said , 

then  knew  to  be  an  (officer)    ( )  of  the  enemy's  army,  a  communication 

(in  words  and  figures  as  follows)  (substantially  as  follows),  to  wit. 

69.  Specification:  In  that did,  at ,  on  or  about  the  day 

of  ,  19 — ,  furnish  and  deliver  to  certain  members  of  the  enemy's  army 

,  of  the  value  of  about  $ ,  and ,  of  the  value  of  about  $ , 

all  of  the  total  value  of  $ ,  he  then  well  knowing  that  the  persons  to  whom 

said  goods  were  furnished  and  delivered  were  enemies  of  the  United  States. 

CHARGE:  Violation  of  the  82d  Article  of  War. 

70.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  (lurk)   (act)   (lurk  and  act)  as  a  spy  in  and  about ,  the 

(fortification)  (post)  (quarters)  (encampment)  of  the  Army  of  the  United 
States  there  situated,  and  did  there  (collect)  (attempt  to  collect)  material  infor- 
mation in  regard  to  the  (numbers)    (resources)    (operations)    ( )  of  the 


344  MANUAL  FOE  COURTS-MAETTAL. 

military  forces  of  the  United  States,  with  intent  to  impart  the  same  to  the 
enemy. 

CHARGE:  Violation  of  the  83d  Article  of  War. 

71.  Specification:  In  that did,  at ,  on  or  about  the day 

of  ,  19—   (through  neglect)    (willfully)    suffer  ,  of  the  value  of 

$ ,  military  property  belonging  to  the  United  States,  to  be  (lost)    (spoiled 

by )    (damaged  by )   [Wrongfully  disposed  of  by  (sale  to ) 

( )]. 

CHARGE:  Violation  of  the  84th  Article  of  War. 

72.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19—  [  (through  neglect)  (willfully)  injure  by ]  (lose) ,  of 

the  value  of  $ ,  issued  for  use  in  the  military  service  of  the  United  States. 

73.  Specification:  In  that  did  at  ,  on  or  about  the  day 

of ,  19—,  (unlawfully  sell  to )    (wrongfully  dispose  of  by ) 

of  the  value  of  $ ,  issued  for  use  in  the  military  service  of  the 

United  States. 

CHARGE:  Violation  of  the  85th  Article  of  War. 

74.  Specification:  In  that was,  (in  time  of  war),  found  drunk  while  on 

duty  as ,  at ,  on  or  about  the day  of ,  19 — . 

CHARGE:  Violation  of  the  86th  Article  of  War. 

75.  Specification:  In  that  ,  being  on  guard  and  posted  as  a  sentinel 

(in  time  of  war),  at ,  on  or  about  the day  of ,  19 — ,  was 

found  sleeping  on  his  post. 

76.  Specification:  In  that  ,  being  on  guard  and  posted  as  a  sentinel 

(in  time  of  war),  at ,  on  or  about  the day  of ,  19 — ,  left 

his  post  before  he  was  regularly  relieved. 

CHARGE:  Violation  of  the  87th  Article  of  War. 

77.  Specification:  In  that ,  who  was  then  commanding ,  did  on 

or  about  the  day  of  ,  19 — ,  become  financially  interested  in  the 

sale  of ,  brought  into  said for  the  use  of  the  troops  thereat  by 

,   by    (receiving)    (entering   into   an   agreement   to   receive)    from   the 

said ( —  per  cent  of  the  profits  on  said  sales)    (the  sum  of  $ — )  as  a 

consideration  for  the  privilege  (of )  extended  by  him  to  said , 

78.  Specifijcation:  In  that ,  who  was  then  commanding ,  did,  on 

or  about  the day  of ,  19 — ,  lay  a  (duty)    (imposition)    (duty  and 

imposition)  of  ( —  per  cent)    ( )  on  the  proceeds  of  all  sales  of  

brought  into  said  — ,  and  did  appropriate  the  moneys  collected  on  account 

of   said    (duty)    (imposition)    (duty   and   imposition)    to    (his   own   use   and 
benefit)    ( ). 

CHARGE:  Violation  of  the  88th  Article  of  War. 

79.  Specification:  In  that  did,  on  or  about  the day  of , 

19 — ,  do  violence  to ,  an  inhabitant  of  the  country,  who  was  bringing  (sup- 
plies)  (provisions)  ( )  to  the  (camp)   (garrison)  (quarters)  of  the  forces 

of  the  United  States  there  situated,  by  striking  and  beating  the  said . 

80.  Specification:  In  that ,  and ,  acting  jointly  and  in  concert,  did, 

on  or  about  the day  of ,  19 — ,  interfere  with ,  an  inhabitant 

of  the  country,  who  was  bringing    (provisions)    (supplies)    ( )    to  the 

(camp)   (garrison)   (quarters)  of  the  forces  of  the  United  States  there  situated 

by   (preventing  the  said  from  passing  over  a  road  leading  into  said 

,  ( ). 


APPENDICES.  345 


81.  Specification:  In  that  ,  did  on  or  about  the  day  of 


19 — ,  intimidate ,  an  inhabitant  of  the  country,  who  was  bringing  (provi- 
sions)  (supplies)   ( )  into  the  (camp)   (garrison)   (quarters)  of  the  forces 

of  the  United  States  there  situated,  by  [threatening  to  kill  the  said if  he 

continued  to  bring   (provisions)    (supplies)    ( )   into  said   (camp)    (gar- 
rison)  (quarters)]  ( ). 

CHARGE:  Violation  of  the  89th  Article  of  War. 

82.  Specification:  In  that did  at ,  on  or  about  the day  of 

,  19 — ,  commit  a  depredation  upon  (an)   (a)   (orchard)    ( )  belong- 


ing to and  situated  near  the  said ,  by  [entering  the  same  against 

the  will  of  the  said and  (removing  growing  fruit  from  trees,  the  property 

of )    ( )]. 

83.  Specification:  In  that  and  did  at  ,  on  or  about  the 

day  of ,  19 — ,  commit  a  riot  in  the  public  streets  of  said  

by  (resisting  and  fighting  against  the  peace  oflEicers  of  that )   ( -). 

84.  Specification:  In  that did  at ,  on  or  about  the day  of 

,  19 — ,  wilfully  destroy  a  growing  crop  of  oats  in  a  field  belonging  to 

by  (permitting  the  horses  of  his  troop  to  graze  in  said  field)   ( ). 

85.  Specification:  In  that did  at ,  on  or  about  the day  of 

,  19 — ,  without  the  authority  of  his  commanding  officer  (destroy  a  build- 


ing belonging  to )   ( ). 

86.  Specification:  In  that ,  who  was  then  commanding ,  at —, 

did,  on  the day  of ,  19 — ,  complaint  being  made  to  him  that , 

a of  his  command,  had  (damaged)  (destroyed)  (damaged  and  destroyed) 

( )  ,  the  property  of ,  refuse  to  see  reparation  made  to  the 

said so  far  as  said  's  pay  would  go  toward  such  reparation  and 

as  provided  for  in  the  105th  Article  of  War. 

CHARGE:  Violation  of  the  90th  Article  of  War. 

87.  Specification:  In  that did  at ,  on  or  about  the day  of 

,  19 — ,  use  a    (reproachful)    (provoking)    (reproachful  and  provoking) 

speech  against  ,  to  wit:  ,  or  words  to  that  effect,  and  did  ac- 
company said  speech  with  a  provoking  gesture,  to  wit  (shaking  his  closed  fist 
in  the  face  of  the  said )   ( ). 

CHARGE:  Violation  of  the  91st  Article  of  War. 

88.  Specification:  In  that ,  being  officer  of  the  day  at  and  hav- 
ing knowledge  that  and  intended  and  were  about  to  engage  in 

a  duel  near  that  -: ,  did  on  or  about  the day  of ,  19 — ,  connive 

at  the  fighting  of  said  duel  by  knowingly  permitting ,  one  of  the  parties 

to  said  proposed  duel,  to  leave  the  post  and  go  toward  the  place  appointed  for 

said  duel  and  at  the  time  and  at  the  hour  which  he, ,  then  knew  had  been 

appointed  therefor. 

89.  Specification:  In  that ,  being  officer  of  the  day  at ,  and  hav- 
ing knowledge  on  or  about  the day  of ,  19 — ,  that  a  challenge  to 

fight  a  duel  had  been  sent  by  to  ,  did  fail  to  report  the  fact 

promptly  to  the  proper  authority. 

90.  Specification:  In  that  and  did  at  ,  on  or  about  the 

day  of ,  19 — ,  fight  a  duel,  using,  as  weapons  therefor,  (swords) 

(pistols)   ( ). 

91.  Specification:  In  that did  at ,  on  or  about  the day  of 

,  19 — ,  promote  a  duel  between and by  knowingly  acting  as 

a  messenger  for and  knowingly  carrying  from  said to  said 

a  challenge  to  fight  a  duel. 


346  MANUAL  FOR  COURTS-MARTIAL. 

CHARGE:  Violation  of  the  92d  Article  of  War. 

92.  Specification:  In  that did,  at ,  on  or  about  the  day 

of  ,  19 — ,  with  malice  aforethought,  willfully,  deliberately,  feloniously, 

unlawfully,  and  with  premeditation  kill  one ,  a  human  being  by  (shoot- 
ing him  with  a  rifle)   ( ). 

93.  Specification:  In  that did,  at  ,  on  or  about  the  day 

of ,  19 — ,  forcibly  and  feloniously  against  her  will,  have  carnal  knowledge 

of , 

CHARGE:  Violation  of  the  93d  Article  of  War. 

94.  Specification:  In  that did,  at ,  on  or  about  the  day 

of ,  19 — ,  willfully,  maliciously,  and  feloniously  burn  the  (dwelling  house) 

( )  of . 

95.  Specification:  In  that did,  at ,  on  or  about  the  day 

of ,  19 — ,  with  intent  to  (do  him  bodily  harm),   (commit  a  felony,  viz, 

)  feloniously  (strike)   ( )   (in)   (on)  the with  a . 

96.  Specification:  In  that did,  at ,  on  or  about  the  day 

of  ,  19 — ,  in  the  nighttime  break  into  and  enter  the   (dwelling  house) 

( )  of ,  with  intent  to  commit  a  felony,  viz, . 

97.  Specification:  In  that did,  at ,  on  or  about  the  day 

of 1  19 — »  fraudulently  convert  to  his  own  use  and  benefit  ,  value 

about  $ ,  the  property  of ,  intrusted  to  him  (by  the  said  ) 

(for by ). 

98.  Specification:  In  that did,  at ,  on  or  about  the  day 

of  ,  19 — ,  feloniously  take,  steal,  and  carry  away  ,  value  about 

$ ,  the  property  of . 

99.  Specification:  In  that did,  at ,  on  or  about  the day 

of  ,  19 — ,  willfully,  feloniously,  and  unlawfully  kill  ,  by  

him  (in)   (on)  the with  a . 

100.  Specification:  In  that ,  did,  at ,  on  or  about  the day 

of ,  19 — ,  unlawfully,  willfully,  and  feloniously  cut  off  the  (hand)   (arm) 

( )  of .     (For  the  offense  of  maiming,  see  Specification  No.  173.) 

101.  Specification:  In  that  (having)    (did,  on  the  —  day  of  , 

19 — )  in  a  (trial  by  court-martial  of )    (deposition  for  use  in  a  trial  by 

court-martial  of )   ( )   (taken)   (take)  an  oath,  before  a  competent 

(tribunal)  (ofllcer)  (person)  that  [he  w^ould  (testify)  (declare)  (depose) 
(certify)  truly]  [a  (declaration)  (deposition)  (certificate)  ( )  sub- 
scribed by  him  was  true]   [did  at on  or  about  the day  of , 

19 — ,  willfully  and  contrary  to  such  oath,  (state)  (subscribe  a  statement)  in 
substance  that  ]  which  (statement)  (declaration)  (deposition)  (certifi- 
cate) was  a  material  matter  and  which  statement  he  did  not  then  believe  to 
be  true. 

102.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  by  (force  and  violence)   (putting  him  in  fear)  feloniously  take 

from  the  (i)erson)   (presence)  of , ,  value  about  $ . 

CHARGE:  Violation  of  the  94th  Article  of  War. 

103.  Specification:  In  that did,  at ,  on  or  about  the day 

of  ,  19 — ,   (make)    (cause  to  be  made  by  )   a  claim  against  the 

(United  States)  (Quartermaster  at )  ( )  in  the  amount  of  $ , 

for  (private  property  alleged  to  have  been  (lost)  (destroyed)  in  the  military 
service)  ( ),  which  claim  was  (false)  (fraudulent)  (false  and  fraudu- 
lent)  in  that  and  was  then  known  by  the  said  to  be   (false) 

(fraudulent)   (false  and  fraudulent). 


APPENDICES.  347 

104.  Specification:  In  that did,  at  ,  on  or  about  the day 

of  ,  19 — ,   (present)    (cause  to  be  presented  by  )   for   (approval) 

(payment)     (approval   and   payment)    a    claim   against   the    (United    States) 

(Quartermaster  at  )    ( )   in  the  amount  of  $ ,  for   (services 

alleged  to  have  been  rendered  to  the  United  States  by )   ( ),  which 

claim  was  (false)   (fraudulent)   (false  and  fraudulent)  in  that and  was 

then  known  by  the  said  — to  be  (false)  (fraudulent)  (false  and  fraudu- 
lent). 

105.  Specificatio7i:  In  that  did,  at ,  on  or  about  the day 

of  ,  19 — ,  enter  into  an  (agreement)  (conspiracy)  (agreement  and  con- 
spiracy)   with ,  to  defraud   the  United   States  by    (obtaining)     (aiding 

to  obtain)  the  (allowance)    (payment)    (allowance  and  payment)  of  a 

(false)  (fraudulent)  (false  and  fraudulent)  claim  against  the  United  States  in 
the  amount  of  $ ,  for  (supplies)  ( )  alleged  to  have  been  fur- 
nished to  the  United  States  by  ,  which  claim  was   (false)    (fraudulent) 

(false  and  frudulent)  in  that and  was  the  known  by  the  said to 

be  (false)   (fraudulent)   (false  and  fraudulent). 

106.  Specification:  In  that  ,  for  the  purpose  of    (obtaining)    (aiding 

others  to  obtain)  the  (approval)  (allowance)  (payment)  (approval,  allowance, 
and    payment)     of    a    claim    against    the     (United    States)     (Quartermaster 

at --)   ( ),  did,  at ,  on  or  about  the day  of ,  19 — , 

(make)    (use)    (make  and  use)   a  ,  which  said  ,  as  he,  , 

then  knew  contained  a  statement  that  ,  which  statement  was    (false) 

(fraudulent)    (false  and  fraudulent)   in  that  and  was  then  known  by 

the  said to  be  (false)   (fraudulent)   (false  and  fraudulent). 

107.  Specification:  In  that  ,  for  the  purpose  of    (obtaining)    (aiding 

others  to  obtain)  the  (approval)  (allowance)  (payment)  (approval,  allow- 
ance, and  payment)   of  a  claim  against  the   (United  States)    (Quartermaster 

at )   ( ),  did,  at ,  on  or  about  the day  of ,  19 — , 

(advise)    (procure)    (advise  and  procure)   the   (making)    (use)    (making  and 

use)  of  a by ,  which  said  ,  as  he  then  knew,  contained  a 

statement  that  ,  which  statement  was   (false)    (fraudulent)    (false  and 

fraudulent)  in  that ,  and  was  then  known  by  the  said to  be  (false) 

(fraudulent)    (false  and  fraudulent). 

108.  Specification:  In  that  ,  for  the  purpose  of    (obtaining)    (aiding 

others  to  obtain)  the  (approval)  (allowance)  (payment)  (approval,  allowance, 
and   payment)    of  a   claim   against   the    (United   States)     (Quartermaster    at 

)    ( ),  did,  at  ,  on  or  about  the  day  of  ,  19 — , 

(make)   (procure  the  making  of)    (advise  the  making  of)    (advise  and  procure 

the  making  of)  an  oath  by  that  ,  which  said  oath  was  false  in 

that ,  and  was  then  known  by  the  said to  be  false. 

109.  Specification:  In  that  ,  for  the  purpose  of    (obtaining)    (aiding 

others  to  obtain)  the  (approval)  (allowance)  (payment)  (approval,  allow- 
ance, and  payment)   of  a  claim  against  the   (United  States)    (Quartermaster 

at )   ( ),  did,  at ,  on  or  about  the day  of ,  19 — , 

(forge)    (counterfeit)    (forge  and  counterfeit)    (the  signature  of  upon 

a )   (a )  in  words  and  figures  as  follows : . 

110.  Specification:  In  that  ,  for  the  purpose  of   (obtaining)    (aiding 

to  obtain)  the  (approval)   (allowance)   (payment)   (approval,  allowance, 


and  payment)  of  a  claim  against  the  (United  States)  (Quartermaster  at ) 

( ),  did,  at ,  on  or  about  the day  of ,  19 — ,  (advise) 

(procure)    (advise  and  procure)   thfe   (forging)    (counterfeiting)    (forging  and 

counterfeiting)    by  of    (the  signature  of  upon   a   )    (a 

' )  in  words  and  figures  as  follows: . 


348  MANUAL   FOK   COUETS-MAETIAL. 

111.  Specification:  In  that  ,  for  the  purpose  of    (obtaining)    (aiding 

others  to  obtain)  the  (approval)  (allowance)  (payment)  (approval,  allow- 
ance, and  payment)   of  a  claim  against  the    (United  States)    (quartermaster 

at )   ( ),  did,  at  — ,  on  or  about  the day  of ,  19 — , 

(use)    (adyise  the  use  of)    (procure  the  use  of)  a  in  words  and  figures 

as  follows: (the  same)  (the  signature  thereon)  being  (forged)  (counter- 
feited)   (forged  and  counterfeited),  and  then  known  by  the  said  to  be 

(forged)    (counterfeited)    (forged  and  counterfeited). 

112.  Specification:  In  that  ,  having   (charge)    (possession)    (custody) 

(control)   of  (money)    ( )   of  the  United  States,    (furnished)    (intended) 

(furnished  and  intended)   for  the  military  service  thereof,  did,  at  ,  on 

or  about  the  day  of  19 — ,  knowingly    (deliver)    (cause  to  be 

deliverel)  to ,  the  said ,  having  authority  to  receive  the  same,  (an) 

(a)    (amount)    (number)     (quantity)    which,   as   he,  ,   then   knew   was 

( dollars  cents)     ( )    less  than   the    (amount)     (number) 

(quantity)  for  which  he  received  a  (certificate)  (receipt),  from  the  said . 

113.  Specification:  In   that   ,   being   authorized    to    (make)     (deliver) 

(make  and  deliver)  a  paper  certifying  the  receipt  of  property  of  the  United 
States  (furnished)  (intended)  (furnished  and  intended)  for  the  military  serv- 
ice thereof,  did,  at ,  on  or  about  the day  of ,  19 — ,   (make) 

(deliver)  (make  and  deliver)  to a  writing  in  words  and  figures  as  fol- 
lows:   ,  without  having  full  knowledge  of  the  truth  of  the  statements 

therein  contained  and  with  the  intent  to  defraud  the  United  States. 

114.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 —  (feloniously  take,  steal,  and  carry  away)  (embezzle)  (knowingly 

and  wilfully  misappropriate)  (apply  to  his  own  use)  (apply  to  his  own  benefit) 
(apply  to  his  own  use  and  benefit)    (wrongfully  sell)    (knowingly  and  without 

proper  authority  sell)    (wrongfully  and  knowingly  sell), of  the 

value  of  about  $ ,  property  of  the  United  States  (furnished)    (intended) 

(furnished  and  intended)  for  the  military  service  thereof. 

115.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  knowingly  (purchase)    (receive  in  pledge)  from , 

(in)  (employed  in)  the  military  servfte  of  the  United  States  for  an  (obliga- 
tion)   (indebtedness)   ,  of  the  value  of  about  $ ,  property  of  the 

United  States,  the  said  —  not  having  the  lawful  right  to   (sell)    (pledge) 

the  same. 

CHARGE:  Violation  of  the  95th  Article  of  War. 

116.  Specification:  In  that ,  being  indebted  to  various  creditors  in  the 

sum  of  about  $ and  being  without  either  means  or  probable  means  with 

which  to  liquidate  within  a  reasonable  time  said  indebtedness,  did,  at  , 

on  or  about  the day  of ,  19 — ,  unnecessarily  contract  with  

a  further  indebtedness  of  about  $ . 

117.  Specification:  In  that  was,  at  ,  on  or  about  the day 

of ,  19 — ,  so  (drunk)  (disorderly)  (drunk  and  disorderly)  while  in  uni- 
form, in  the  presence  and  hearing  of  several  persons,  as  to  disgrace  the  military 
service. 

118.  Specification:   In   that   ,    having    assigned    to   his    claim 

(against  the  United  States)  for  pay  in  full  for  the  month  of ,  19 — ,  did, 

at ,  on  or  about  the day  of ,  19 — ,  assign  to a  second 

claim  against  the  United  States  for  pay  in  full  for  the  said  month  of  , 

19 — ,  which  second  claim  was  by  him  knoYrn  to  be  false  and  fraudulent. 

119.  Specification:  In  that  ,  being  indebted  to  in  the  sum  of 

$ for  ,  which  amount  became  due  and  payable  (on)    (about)    (on 


or 


about)  ,  did,  at  ,  on  or  about  the  day  of  ,  19 — , 


APPENDICES.  349 

without  due  cause  fail  and  neglect  to  pay  said  debt,  notwithstanding  the  fact 

that  he  had  been  repeatedly  requested  by  the  said  to  pay  the  amount 

thereof,  thereby  bringing  discredit  upon  the  military  service. 

120.  Specification:  In  that ,  having  on  or  about  the day  of  19 — 

become  indebted  to in  the  sum  of  about  $ for ,  and  having 

failed  without  due  cause  to  liquidate  said  indebtedness,  and  having  on  or  about 

the day  of ,  19 — ,  promised  in  writing  to  said that  he  would 

on  or  about  the  day  of ,  19 — ,  (settle  such  indebtedness  in  full) 

(pay  on  such  indebtedness  the  sum  of  $ ),  did,  without  due  cause,  at 

,  on  or  about  the  day  of  19 — ,  to  the  disgrace  of  the  military 

service,  fail  to  keep  said  promise. 

121.  Specification:  In  that  ,  having  made  and  executed  in  due  form 

his  voucher  for  pay  as for  the  month  of ,  19 — ,  and  having  duly 

assigned  the  said  voucher  to ,  did  at on  or  about  the day 

of ,  19 — ,  while  the  said  voucher  and  the  assignment  thereof  remained  in 

force  and  effect,  falsely  certify  with  his  official  signature,  to  the  correctness  of 
another  voucher  for  pay  for  the  said  month  of ,  19 — ,  duly  made,  exe- 
cuted, and  assigned  to  ,  which  said  certificate  was  in  words  as  fol- 
lows : . 

122.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  with  intent  to  deceive ,  ofiicially  (report)   (state)  to  the 

said ,  that ,  which  (report)    (statement)  was  (known  by  the  said 

to  be  untrue)   (believed  by  the  said to  be  untrue)   (made  by  the 

said  with  disregard  of  a  knowledge  of  the  facts)    (made  by  the  said 

as  true  when  he  did  not  know  it  to  be  true)  in  that . 

123.  Specification:  In  that  ,   with   intent   to  defraud  ,   did,  at 

,  on  or  about  the day  of ,  19 — ,  unlawfully  pretend  to 


that ,  well  knowing  that  said  pretenses  were  false,  and  by  means  thereof 

did  fraudulently  obtain  from  the  said  (the  sum  of  $ )    (mer- 
chandise of  the  value  of  $ )   ( ). 

124.  Specification:  In  that ,  having  at ,  on  or  about  the 

day  of ,  19 — ,  voluntarily  given  his  pledge  in  words  and  figures  as  fol- 
lows : ,  which  pledge  was  accepted  by  his  commanding  officer -,  did, 

at ,  on  or  about  the day  of ,  19 — ,  in  disregard  of  his  honor 

\  iolate  said  pledge  by . 

CHARGE;  Violation  of  the  96th  Article  of  War. 

125.  Specification:  In  that ,  being  on  guard  as  a ,  did,  at , 

on  or  about  the day  of ,  19 — ,  abandon  his  guard. 

[Note. — This  form  will  be  used  only  in  case  where  absence  from  guard  is 
coupled  with  an  intent  not  to  return  during  the  tour  of  duty.  Ordinary  absence 
from  guard  duty  will  be  charged  under  A.  W.  61.) 

126.  Specification:  In  tliat did,  at ,  on  or  about  the day 

of ,  19—,  [kick  a  public  (horse)    ( )   in  the  belly]    ( ). 

127.  Specification:    In  that  ,  a   (sentinel)    (overseer)    ( ),  being 

in  charge  of  prisoners,  did,  at  ,  on  or  about  the  day  of  , 

19 — ,  allow ,  a  prisoner  under  his  charge,  to  (go  to)   (enter)   (go  to  and 

enter)  an  unauthorized  place,  to  wit: . 

128.  Specification:  In  that ,  a  (sentinel)   (overseer)   ( ),  being  in 

charge  of  prisoners,  did,  at ,  on  or  about  the day  of ,  19 — , 

allow ,  a  prisoner  under  his  charge,  to  (hold  unauthorized  conversation 

with )    (loiter)    (neglect  his  task  by  )    (obtain  )    ( ). 

129.  Specification:    In  that  ,  a   (sentinel)    (overseer)    ( ),  being 

in  charge  of  prisoners  and  having  received  a  lawful  order  from  ,  to 


350  MANUAL  FOR  COURTS-MAETIAL. 

require  a  prisoner  under  his  charge  to  ,  did,  at  ,  on  or  about 

the day  of ,  19 — ,  fail  to  obey  the  same. 

130.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  without  authority,  appear  in  civilian  clothing. 

131.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  appear  (at)  (on)  (without  his )   (with  his 

not  buttoned)   (in  an  unclean )   ( ). 

132.  Specification:  In  that did,  at ,  on  or  about  the day 

of  ,  19 — ,  attempt  to   (strike)    ( )   (in)    (on)   the  

with . 

[Note. — For  assaults  upon  oflScers  and  noncommissioned  officers  amounting  to 
felonies  see  A.  W.  93.] 

133.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19—,  (strilie)  ( )  (in)  (on)  the with . 

[Note. — See  note  under  Specification  132.] 

134.  Specification:  In  that did,  at (on  or  about  the day 

of ,  19 — ),  (between and ),  with  the  intention  of  evading 

his    (duty)    ( )    as  a    (soldier)    ( ),  feign    (illness),    (disability), 

(insanity),  ( ). 

135.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 —  (attempt  to),  (threaten  to)  (strike)   ( )  ,  a  sentinel 

in  the  execution  of  his  duty,  [(in)  (on)  the ]  with . 

136.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  strike  ( ) ,  a  sentinel  in  the  execution  of  his  duty, 

(in)    (on)  the with . 

137.  Specification:  In  that ,  a  prisoner  in  confinement  serving  sentence 

in  the  post  guardhouse,  ( ),  did,  at ,  on  or  about  the day  of 

,  19 — ,  (escape)   (attempt  to  escape)  from  such  confinement. 

138.  Specification:  In  that ,  a  prisoner,  did,  at ,  on  or  about  the 

day  of ,  19 — ,  use  the  following  disrespectful  language  to , 


a  sentinel  in  the  execution  of  his  duty :  " ,"  or  words  to  that  effect. 

139.  Specification:  In  that  ,  having  been  restricted  to  the  limits  of 

,  did,  at ,  on  or  about  the day  of ,  19 — ,  break  the 

same  by  going  to . 


140.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  unlawfully  carry  a  concealed  weapon,  viz,  a . 

141.  Specification:  In  that ,  did,  at ,  on  or  about  the day 

of ,  19 — ,  (urinate)  (defecate)  ( )  (on  the  floor  of  the  squad  room) 

( ). 

142.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,19 — ,  willfully  and  unlawfully  [(conceal)  (remove)  mutilate)  (ob- 
literate) (destroy)]  [attempt  to  (conceal)  (remove)  (mutilate)  (obliterate) 
(destroy)]  [take and  carry  away  with  intent  to  (conceal)  (remove)  (mutilate) 
(obliterate)  (destroy)  (steal)]  a  public  record,  to  wit:  (the  descriptive  list  of 
)   ( ). 

143.  Sped  fixation:  In  that  ,   a   prisoner   in   confinement   in   the  post 

guard  house,  ( ),  did,  at ,  on  or  about  the  day  of , 

19 — ,  conspire  with and to  escape  from  such  confinement.     (For 

joint  charge  see  par.  69.) 

144.  Spedfijcation:  In  that did,  at ,  on  or  about  the day, 

of ,  19 — ,  willfully  destroy ,  value  about  $ ,  property  of  the 

United  States. 

145.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  through  carelessness,  discharge  a  (service  rifle)  ( )  in  his 

(squad  room)   (in  his  tent)   ( ). 


APPENDICES.  351 


146.  Specification:  In  that ,  having  received  a  lawful  order  from 


a  sentinel  in  the  execution  of  his  duty,  to ,  did,  at ,  on  or  about  the 

day  of ,  19—,  (fail  to  obey)   (willfully  disobey)  the  same. 

147.  Specification:  In  that was,  at ,  on  or  about  the day 

of ,19—,  (drunk)  (disorderly)  (drunk  and  disorderly)  in  (camp)  (post) 

(quarters)  ( ). 

148.  Specification:  In  that was,  at ,  on  or  about  the day 

of ,  19 — ,  (drunk)    (disorderly)    (drunk  and  disorderly)  in  uniform  and 

did  thereby  bring  discredit  upon  the  military  service. 

149.  Specification:  In  that ,  a  sentinel  ( )  in  charge  of  prisoners, 

did,  at ,  on  or  about  the day  of ,  19 — ,  drink  intoxicating; 

liquor  with ,  a  prisoner  under  his  charge. 

150.  Specification:  In  that  ,  a  prisoner,  was,  at  ^  on  or  about 

the day  of ,  19 — ,  found  drunk. 

151.  Specification:    In   that   ,    having   received   a   lawful   order   from 

to  ,  the  said  being  in  the  execution  of  his  office,  did, 

at ,  on  or  about  the day  of ,  19 — ,  fail  to  obey  the  same. 

152.  Specification:  In  that  did,  at  ,  on  or  about  the  

day  of ,  19 — ,  violate  (standing  orders)  (regulations)  of by . 

153.  Specification:  In  that  did,  at  ,  on  or  about  the  

day  of ,  19 — ,  wrongfully  use ,  a  narcotic  drug. 

154.  Specification:  In  that  ,  being  indebted  to  in  the  sum  of 

$ ,  which  amount  became  due  and  payable    (on)    (about)    ,   did, 

at ,  on  or  about  the day  of ,  19 — ,  without  due  cause,  fail 

and   neglect   to   pay  said   debt,   notwithstanding   the   fact   that   he   had   been 

repeatedly  requested  by  the  said  to  pay  the  amount  thereof,  thereby 

bringing  discredit  upon  the  military  service. 

155.  Specification:  In  that ,  having  been  directed  to  report  for  prophy- 
lactic treatment  at   (the  post  hospital)    ( )   did,  at  ,  on  or  about 

the day  of ,  19 — ,  fall  to  report  as  directed. 

156.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  with  intent  to  deceive ,  officially  (report)    (state)  to  the 

said  ,  that  ,  which    (report)    (statement)    was    (known  by   the 

said to  be  untrue)   (believed  by  the  said to  be  untrue)   (made  by 

the  said  with  disregard  of  a  knowledge  of  the  facts)    (made  by  the 

said as  true  when  he  did  not  know  it  to  be  true)  in  that . 


157.  Specification:  In  that ,  (having)  (did  on  the day  of , 

19 — ,)  in  a  (trial  by  court-martial  of )    (deposition  for  use  in  a  trial  by 

court-martial  of )    ( )    (taken)   (take)  an  oath,  before  a  competent 

(tribunal)  (officer)  (person)  that  [(he  would  testify)  (declare)  (depose) 
(certify)  (truly)]  [a  (declaration)  (deposition)  (certificate)  ( )  sub- 
scribed by  him  was  true]  did,  at ,  on  or  about  the day  of , 

19 — ,  willfully  and  contrary  to  such  oath,  (state)  (subscribe  a  statement)  in 
substance  that  ,  which  (statement)  (declaration)  (deposition)  (certifi- 
cate)   ( )  he  did  not  then  believe  to  be  true. 

[Note. — For  charging  perjury  see  Specification  No.  101.] 

158.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  with  intent  to  defraud,  feloniously  forge  (in  its  entirety)   [by 

(altering )  (erasing )  (adding )]  a  certain  (check)  ( ) 

in  the  following  words  and  figures . 

159.  Specification:  In  that  (Sergeant)    (Corporal)  did,  at  ,  on 

or  about  the day  of ,  19 — ,  gamble  with  Privates and . 

160.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  gamble  in  quarters,  in  violation  of  orders. 


352  MANUAL  FOB  COURTS-MARTIAL. 

161.  Specification:  In  that did,  at  ,  on  or  about  the day 

of  ,  19 — ,  while   (at  a  barrack  window)    ( )   indecently  expose  to 

public  view  his  ( ). 

162.  Specification:  In  that  (for  and  in  behalf  of  one  )  did,  at 

,  on  or  about  the  day  of  ,  19 — ,  loan  to  $ ■ — , 

under  an  agreement  whereby  he,  the  said ,  was  to  receive  for  the  use  of 

said  money  for (months)   (days)   (interest  at  the  rate  of per  cent 

per  (annum)   (month)   (the  sum  of  $ ),  thereby  (demanding)   (receiving) 

(demanding  and  receiving)  an  usurious  rate  of  interest  for  said  loan. 

163.  Specification:  In  that ,  while  posted  as  a  sentinel,  did,  at  , 

on  or  about  the day  of ,  19 — ,  loiter  on  his  post. 

164.  Specification:  In  that ,  with  intent  to  defraud,  did,  at ,  on 

or  about  the  day  of  ,  19 — ,  unlawfully  pretend  to  that 

,  well  knowing  that  said  pretenses  were  false  and  by  means  thereof  did 

fraudulently  obtain  from  the  said  (the  sum  of  $ )    (merchandise 

of  the  value  of  $ )    ( ). 

165.  Specification:  In  that ,  while  suffering  (with)    (from)  ,  did, 

at ,  on  or  about  the day  of ,  19 — ,  refuse  to  submit  to  the 

(dental  or  medical  treatment)    (siargical  operation)   prescribed  by  .  the 

attending   (dental)   surgeon  for  the   (disease)    (injury),  the  said   (treatment) 

(operation)  consisting  in ,  being  necessary  and  being  without  appreciable 

risk  to  his  life. 

166.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  willfully  maim  himself  in  the by  (shooting  himself  with 

)   ( ),  thereby  unfitting  himself  for  the  full  performance  of  military 

service. 

167.  Specification:  In  that ,  while  posted  as  a  sentinel,  did,  at  , 

on  or  about  the day  of ,  19 — ,  sit  down  on  his  post. 

168.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  commit  sodomy  upon  the  person  of  one . 

[Note. — If  the  acts  alleged  do  not  amount  to  sodomy  as  defined  in  par.  443, 
the  acts  committed  will  be  accurately  described  in  the  specification.] 

169.  Specification:  In  that did,  at ,  on  or  about  the day 

of  ,  19 — ,  while  accompanying  his  organization  on   (a  practice  march) 

(maneuvers)  straggle. 

170.  Specification:  In  that ,  knowing  that  would  corruptly  and 

willfully  (give  false  testimony)   (make  a  false  declaration,  etc.),  did,  at , 

on  or  about  the day  of ,  19 — ,  procure  the  said to  commit 

perjury,  by  inducing  him,  the  said ,  to  take  an  oath  before  a  competent 

(tribunal)    (officer)    (person)  in  a  (trial  by  court-martial  of )  that  [he, 

the  said ,  would  (testify)  (declare)  (depose)  (certify)  truly]  [a  (decla- 
ration) (deposition)  (certificate)  subscribed  by  him  was  true]  and,  willfully, 
corruptly  and  contrary  to  such  oath,  to  (testify)    (declare)    (depose)    (certify) 

as  follows: ,  which    (testimony)    (declaration,   deposition,   etc.) 

was  false,  was  (material)  (a  material  matter)  and  was  known  by  the  said 
and  the  said to  be  false.     (C  M.  C.  M.,  No.  1.) 

171.  Specification:  In  that  did,  at  ,  on  ,  with  intent  to 

defraud,  feloniously  utter  to  as  true  a  certain    (written   instrument) 

( ),  in  the  following  words  and  figures,  " ,"  the  said  well 

knowing  that  the  said  (instrument)   ( )  was  forged. 

172.  Specification:  In  that  ,  a  prisoner  on  parole,  did,  at  ,  on 

or  about  the day  of ,  19 — ,  break  his  parole  by . 

173.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  with  intent  to  (maim)  (disfigure)  ,  willfully  and  feloni- 
ously [(cut)   (bite)   ( )  the  (nose)    (ear)    ( )  of]   [(throw)    (pour) 

corrosive  acid  ( )  upon]  the  said .     (For  mayhem,  see  Specification 

No.  1(X).) 


APPENDIX  5. 
SUGGESTIONS  FOR  TRIAL  JUDGE  ADVOCATES. 


The  judge  advocate  of  a  general  or  special  court-martial  shall  prosecute  in 
the  name  of  the  United  States,  and  shall,  under  the  direction  of  the  court,  pre- 
pare the  record  of  its  proceedings.     (A.  W.  17.) 

The  following  notes,  indicating  more  or  less  in  proper  sequence  certain  action 
usually  proper  to  be  taken  by  a  trial  judge  advocate,  may  be  found  useful : 

1.  UPON  RECEIPT  BY  AN   OFFICER  OF  AN   ORDER  APPOINTING 
HIM  JUDGE  ADVOCATE  OF  A  COURT-MARTIAL. 

{a)  Examine  the  order  carefully  and  take  appropriate  action  to  cause  the 
correction  of  any  substantial  irregularity  therein. 

(b)  Examine  and  study  such  portions  of  the  Manual  for  Courts-Martial, 
Digest  of  Opinions  of  the  Judge  Advocates  General,  Army  Regulations,  and  War 
Department  or  other  orders  affecting  courts-martial  as  may  appear  desirable. 
He  should,  in  this  connection,  give  particular  attention  to  the  duties  of  trial 
judge  advocates,  to  the  procedure  of  courts-martial,  and  to  the  matter  of  evi- 
dence. 

2.  UPON  RECEIPT  OF  CHARGES  IN  A  CASE. 

(a)  Prepare  an  envelope  to  contain  the  papers  pertaining  thereto. 

(6)  Examine  the  charges  and  all  papers  received  to  see  that  none  appear  to 
be  missing,  that  the  charges  appear  to  be  correctly  drawn,  that  the  evidence  of 
previous  convictions  is  complete  and  correct,  especially  as  to  dates,  authentica- 
tion, proper  signatures,  etc. 

(c)  Make  authorized  necessary  changes  in  charges  and  take  proper  action 
in  connection  with  defects,  if  any,  found  in  evidence  of  previous  convictions. 

(d)  Report  to  the  appointing  authority  necessary  oi:  desirable  changes  which 
the  judge  advocate  is  not  authorized  to  make. 

(e)  Furnish  the  accused,  if  he  so  desires,  a  copy  of  the  charges;  and,  if  he 
desires  to  state,  ascertain  from  him  how  he  intends  to  plead. 

(/)  Ascertain  whether  accused  desires  counsel;  and  if  so,  ascertain  whether 
he  wishes  a  particular  person ;  and  if  so,  whom. 

(g)  Arrange  for  counsel,  if  desired  to  do  so. 

(h)  Prepare  case  for  trial,  investigating  it  thoroughly,  and  determining  upon 
plan  of  prosecution. 

(i)  Arrange  with  president  date  and  time  of  meeting  of  court. 

(;')  Arrange  for  court-martial  room,  see  that  it  is  in  order,  provided  with 
necessary  tables,  chairSj  stationery,  and  room  to  be  heated,  if  necessary. 

(k)  Notify  all  members  of  date  and  time  of  meeting  and  arrange  for  presence 
of  other  necessary  persons,  including  the  accused  and  his  counsel,  reporter,  in- 
terpreter, if  required,  and  witnesses. 

91487°— 17 24  353 


.S54  MANUAL   FOR   COURTS- MARTIAL. 

(l)  Arrange  to  have  at  trial  such  books,  etc.,  as  may  be  required.  The  fol- 
lowing are  frequently  found  necessary  or  useful : 

Manual  for  Courts-Martial. 

Digest  of  Opinions,  Judge  Advocates  General. 

Standard  Text  on  Military  Law. 

Ordnance  Price  List. 

Clothing  Price  List, 
(w)  Determine  maximum  punishment,  if  any,  imposable  upon  conviction  of 
each  of  the  several  offenses  charged,  aiid  note  same  on  slip  for  use  of  court 
in  the  event  of  a  conviction. 

3.  UPON  THE  ASSEMBLING  OF  THE  COURT. 

(a)  Note  officers  present  and  absent. 

(&)  When  court  appears  to  be  ready  to  proceed,  announce  the  readiness  of 

the  prosecution  to  proceed  with  trial  of ,  who  desires  to  introduce 

as  counsel,  or  does  not  desire  to  introduce  counsel. 

(c)  Swear  reporter,  if  any. 

(d)  If  a  general  court-martial,  ask  accused  if  he  desires  a  copy  of  the  record 
of  his  trial.  If  he  does  not,  do  not  have  copy  made;  if  he  wishes  copy,  direct 
reporter  to  prepare  one. 

(e)  Read  aloud  to  accused  the  order  appointing  the  court  and  each  modi- 
fying order. 

(/)  Ask  accused  if  he  objects  to  being  tried  by  any  member  present  named 
in  the  order  or  orders. 

(g)  After  action  on  challenge,  if  any  made,  has  been  had,  again  ask  the 
accused  whether  he  objects  as  above.  Continue  this  until  accused  has  no  fur- 
ther objection. 

(h)  Swear  members  of  court. 

(i)  Be  sworn  by  president. 

(/)  Read  charges  and  specifications  aloud  slowly  to  the  accused,  and,  having 
done  so,  ask  him  how  he  pleads  to  the  first  specification,  first  charge — if  neces- 
sary rereading  to  him  the  specification;  then  how  he  pldads  to  the  second 
specification,  first  charge,  etc. ;  then  to  the  first  charge,  etc. 

(fc)  If  there  be  a  plea  of  guilty,  the  president  makes  to  accused  the  required 
explanations  and  asks  him  the  required  questions. 

(I)  Read  to  court  from  chapter  on  punitive  articles  the  gist  of  each  of  the 
several  offenses  charged. 

(m)  Introduce  and  swear  witnesses  for  the  prosecution.  In  some  cases  it 
may  be  desirable  to  acquaint  the  court  with  the  particular  specification  with 
which  the  testimony  of  a  particular  witness  is  connected. 

(n)  In  all  cases  attempt  to  establish  by  evidence  each  of  the  several  speci- 
fications, except  such  elements  as  may  be  the  subjects  of  judicial  notice  or  as 
are  admitted. 

(o)  Examine  each  witness,  having  careful  regard  for  the  rules  of  evidence. 

(p)  Offer  opportunity  to  cross-examine. 

(q)  Reexamine,  if  desirable. 

(r)  Ask  court  if  there  are  any  questions  by  the  court. 

(«)  If  any  witness  is  recalled,  remind  him  that  he  is  still  under  oath. 

(t)  When  the  prosecution  has  nothing  further  to  offer  for  the  time,  announce 
that  the  prosecution  rests. 

(u)  Swear  witnesses  for  defense,  in  succession,  and  cross-examine  so  far 
as  desirable. 


APPENDICES.  355 

{V)  .^fter  defense  rests,  swear  and  examine  witnesses,  if  any,  in  rebuttal 
for  prosecution. 

(w)  If  the  accused  neither  testifies  nor  makes  a  statement,  the  president 
makes  to  him  the  required  explanation  and  asks  him  the  required  questions. 

{(c)  Offer  accused  opportunity  to  make  a  statement. 

iy)  Make  closing  statement,  if  any. 

4.  ADJOURNMENT  DURING  TRIAL. 

(a)  Note  time  of  adjournment. 

(&)  Arrange,  if  practicable,  to  have  completed  record  of  proceedings  to 
date  ready  before  next  assembling  of  court. 

(c)   Subscribe  the  record  of  proceedings  for  the  day. 

5.  FINDINGS. 

(a)  After  both  prosecution  and  defense  have  concluded,  the  court  closes  for 
findings,  and  in  the  case  of  a  person  not  a  soldier  to  award  sentence  upon  con- 
viction. 

(&)  Upon  conviction  of  a  soldier,  the  court  opens  for  the  purpose  of  receiv- 
ing evidence  of  previous  convictions,  if  there  be  any. 

(1)  Read  aloud  duly  authenticated  evidence  of  previous  convictions  referred 
to  the  court  by  the  appointing  authority. 

(2)  Invite  attention  of  court  to  any  apparent  Irregularity  In  the  evidence  of 
previous  convictions. 

(3)  Ask  the  accused  whether  the  evidence  of  the  several  previous  convic- 
tions and  the  statement  of  service  as  shown  on  the  charge  sheet  are  correct. 

(4)  Invite  the  attention  of  the  court  to  any  apparent  Irregularity  In  the 
findings. 

6.  SENTENCK 

ifl,)  The  court  will  then  close  to  determine  upon  and  award  the  sentence. 
(6)  After  awarding  sentence  the  court  notifies  the  judge  advocate  of  the 


(c)  Invite  the  attention  of  the  court  to  any  apparent  irregularity  In  the  sen- 
tence. 

7.  ADJOURNMENT  AT  CLOSE  OF  TRIAL. 

(a)  After  sentence  has  been  awarded  the  court  either  proceeds  to  other 
business  or  adjourns. 

(h)  Note  time  of  proceeding  to  other  business  or  of  adjournment. 

8.  AFTER  TRIAL. 

(a)  Complete  vouchers  for  civilian  witnesses  and  deliver  same,  if  practicable, 
before  the  witness  leaves. 

( b )  Take  proper  measures  to  Insure  the  security  of  the  findings  and  sentence. 
If  recorded,  and  that  they  are  not  disclosed  to  any  but  the  proper  authority. 

(c)  When  record  is  received  back  from  reporter: 

(1)  Examine  carefully  to  see  that  it  is  in  proper  form,  complete,  and  correct 
as  to  both  form  and  substance. 

(2)  Make  proper  notation  on  index  sheet  as  to  copy  of  record. 

(3)  See  that  copies  of  evidence  of  previous  convictions  are  correct,  certify 
same,  and  return  originals  to  organizations. 


356  MANUAL  FOR  COURTS-MARTIAL. 

(4)  If  not  so  attached,  attach  index  sheet  and  all  exhibits. 

(5)  See  that  record  is  securely  bound. 

(d)  Enter  findings  and  sentence, 

(e)  If  findings  and  sentence  are  typewritten,  add  proper  certificate. 
(/)  Authenticate  record. 

{g)  Have  president  authenticate  record. 

(h)  Certify  original  voucher  and  send  it  to  reporter  or  to  a  near  disbursing 
quartermaster,  and  inclose  copy  with  record. 

(i)  Verify  completeness  and  correctness  of  record  by  seeing  that,  so  far  as 
necessary  in  the  particular  case,  each  requirement  stated  in  Chapter  XV, 
Section  I,  paragraph  357  (&)  has  been  complied  with. 

(;)  Indorse  and  forward  charges,  accompanied  by  record  of  trial  and  all 
other  papers  received  with  the  case,  to  the  appointing  authority. 

9.  WEEKLY  REPORT. 

Each  Saturday  report  through  the  president  of  the  court  and  the  commanding 
officer  all  charges  which  have  not  been  returned  to  the  appointing  authority, 
showing  date  of  receipt  of  each  and  reasons  for  delay  in  trial. 

10.  RECORD  WHICH  MAY  BE  KEPT. 

It  is  suggested  that  when  deemed  desirable  at  least  the  following  record  be 
kept  by  the  trial  judge  advocate  in  each  case.  This  record  may  be  conveniently 
kept  on  an  envelope  to  be  used  as  a  container  for  the  charges  and  various 
papers : 

Date  of  receipt  by  him  of  charges  or  other  papers. 

Date  of  preliminary  consultation  by  him  with  the  accused. 

How  accused  intends  to  plead,  if  stated  by  him. 

Counsel : 

Desired? 

If  so,  name. 

If  so,  date  on  which  commanding  officer  so  informed. 

Date  on  which  judge  advocate  informed  of  appointment  of  counsel. 

Result  of  examination  in  preparing  for  trial,  and  dates  and  other  necessary 
facts  pertaining  to  each  other  incident  connected  with  the  case,  such  as  mailing 
Interrogatories,  subpoenaing  witnesses,  etc. 

Date  of  trial. 

Date  and  hour  record  received  back  from  reporter. 

Date  and  hour  record  forwarded  to  appointing  authority. 

Date  of  return  to  commanding  officer  of  evidence  of  previous  convictions,  if 
any,  to  be  so  returned. 


APPENDIX  6. 


FORM    FOR    RECORD    OF   TRIAL    BY    GENERAL    COURT-MARTIAL 
AND  REVISION  PROCEEDINGS. 

Record  of  Trial  by  General  Court-Martial*  of 

INDEX. 

Page' 

Arraignment 

Pleas 

Statement  by  accused - 

Address  by  counsel 

Reply  by  judge  advocate 

Findings 

Previous  convictions  submitted 

Sentence  (or  acquittal) . 

Proceedings  in  revision 

Testimony. 


Name  of  witness. 

Direct. 

Cross. 

Redirect. 

Examina- 
tion by 
court. 

RecaUed. 

Page. 

Page             Page. 

1 

Page. 

Page. 

I 

i 

Exhibits. 


Deposition  ofCapt. 
Deposition  of  Pvt.  - 
Letter  of 


Number. 


Page  where 
introduced. 


^  fnot  desired  by  accused.^ 

Carbon  copy  of  the  record  L^^^.^j^g^  „,^  ^^^^^^_ 


*  See  *'  Courts-martial,  Records  of  trial,  Chap.  XV."  The  record  will  be  clear 
and  legible  and,  if  practicable,  without  erasure  or  interlineation. 

Erasures  or  interlineations  will  be  authenticated  by  the  initials  of  the  judge 
advocate  or  of  the  president,  or,  in  a  proper  case,  of  the  assistant  judge 
advocate. 

The  pages  of  the  record  will  be  numbered  at  the  bottom,  and  margins  of  1 
inch  will  be  left  at  the  top,  bottom,  and  left  side  of  each  page. 

^Line  out  inappropriate  words. 

357 


358  MANUAIi    FOR    COURTS-MARTIAL. 

Proceedings  of  a  general  court-martial  which  convened  at  ,  , 

pursuant  to  the  following  order: 

{Here  insert  a  literal  copy  of  the  order  appointing  the  court  and,  foUowinff  it, 
copies  of  any  orders  modifying  the  detail.) 

FOBT  ,  , 

,  19—. 

The  court  met  pursuant  to  the  foregoing  order  at o'clock  — .  m. 

PRESENT.* 

Maj.  ,  5th  Cavalry. 

Capt. ,  Medical  Corps. 

First  Lieut. ,  10th  Infantry. 

First  Lieut.  ,  5th  Cavalry. 

Second  Lieut.  ,  Coast  Artillery  Corps. 

'   First  Lieut.  ,  5th  Cavalry,  judge  advocate. 

Second  Lieut. ,  29th  Infantry,  assistant  judge  advocate. 

ABSENT.* 

Capt.  ,  Coast  Artillery  Corps  (detached  service). 

Second  Lieut.  ,  10th  Infantry   (leave  of  absence). 

The  court  proceeded  to  the  trial  of  Private  ,  Company  ,  

Infantry,  who,  on  appearing  before  the  court,  stated  that  he  did  not  desire 
counsel  or  introduced  as  counsel. 

was  sworn  as  reporter. 

Capt.   announced   that   he   was   the   accuser   and   was   excused   and 

withdrew. 

(If  an  interpreter  is  to  &e  used  he  should  he  sworn  when  his  services  are 
required. ) ' 

*In  the  record  of  the  proceedings  of  a  court-martial  at  its  organization  for 
the  trial  of  a  case  the  officers  detailed  as  members,  judge  advocate,  and  assist- 
ant judge  advocate  will  be  noted  by  name  as  present  or  absent.  In  the  record 
of  the  proceedings  of  subsequent  sessions  in  the  same  case  (except  in  proceed- 
ings in  revision)  the  following  form  of  words  will  be  used,  subject  to  such 
modification  as  the  facts  may  require :  "  Present,  all  the  members  of  the  court, 
the  judge  advocate,  and  the  assistant  judge  advocate."  When  the  absence  of 
an  officer  who  has  not  qualified  or  who  has  been  relieved  or  excused  as  a  mem- 
ber has  been  accounted  for,  no  further  note  will  be  made  of  it. 

''A  member  of  a  court-martial  who  knows,  or  has  reason  to  believe,  that  he 
will,  for  proper  reason,  be  absent  from  a  session  of  the  court,  will  inform  the 
judge  advocate  accordingly.  When  a  member  of  a  court-martial  is  absent  from 
a  session  thereof,  the  judge  advocate  will  cause  that  fact,  together  with  the 
reason  for  such  absence,  if  known  to  him,  to  be  shown  in  the  record  of  the 
proceedings.  If  the  reason  for  such  absence  is  not  known  to  the  judge  advo- 
cate, he  will  cause  the  record  to  show  the  member  as  absent,  cause  unknown. 

*  Words  in  italics  will  not  be  copied  into  the  record. 


APPENDICES.  359 

The  order  appointing  the  court  (and  the  order  or  orders  modifying  the  detail, 
if  any)  was  {or  were)  read  to  the  accused,  and  he  was  asked  if  he  objected 
to  being  tried  by  any  member  present  named  therein;  to  which  he  replied  in 
the  negative;  or 

Defense:   {Insert  statement.) 

Captain : 

{Insert  the  statement  of  the  challenged  member,  who  ordinarily  should  re- 
spond to  the  challenge  by  briefly  admitting  or  denying  the  grounds  of  the  chal- 
lenge. Should  the  accused,  after  the  statement,  desire  to  call  upon  the  member 
to  testify  as  to  his  competency,  the  record  should  continue:) 

The  accused  having  requested  that  the  challenged  member  be  sworn  as  to 

his  competency  to  act  as  a  member  of  the  court,  was  sworn  by  the 

judge  advocate  and  testified  as  follows: 

The  court  was  closed,  and  on  being  opened  the  president  announced  in  the 
presence  of  the  accused  and  his  counsel  that  the  challenge  was  not  sustained  or 
that  the  challenge  was  sustained. 

//  the  challenge  is  sustained: then  withdrew. 

The  accused  was  asked  if  he  objected  to  any  other  member  present,  to  which 
he  replied  in  the  negative  or 

Defense : 

{Insert  objection  in  full,  record,  and  continue  as  before  until  accused  replies 
in  the  negative.) 

The  members  of  the  court,  the  judge  advocate,  and  the  assistant  judge  advo- 
cate were  then  sworn. 

(//  delay  is  desired,  request  should  now  be  made  and  the  proceedings  re- 
corded.   If  no  continuance  is  requested,  the  record  should  continue:) 

The  accused  was  then  arraigned  upon  the  following  charges  and  specifica- 
tions :* 

Charge  I :  Violation  of  the article  of  war. 

Specification:  In  that,  etc. 

Charge  II :  Violation  of  the article  of  war. 

Specification  1:  In  that,  etc. 

Specification  2:  In  that,  etc. 

,  Capt. Infantry. 

To  which  the  accused  pleaded :  ^ 

To  the  specification.  Charge  I :  Guilty  or  Not  guilty. 

To  Charge  I :  Guilty  or  Not  guilty. 

To  Specification  1,  Charge  II :  Guilty  or  Not  guilty. 

To  Specification  2,  Charge  II :  Guilty  or  Not  guilty. 

To  Charge  II :  Guilty  or  Not  guilty. 

The  paragraphs  of  the  Manual  for  Courts-Martial  that  set  out  the  gist  of  each 
of  the  several  offenses  were  read  to  the  court  by  the  judge  advocate. 

*A11  words  that  precede  the  charge  proper  are  not  parts  of  the  charges  and  will 
not  be  copied  into  the  record,  but  the  name,  rank,  and  organization  of  the  officer 
subscribing  the  charges  will  be  copied  into  the  record  after  the  charges  and 
specifications. 

'In  case  the  accused  pleads  guilty  in  whole  or  in  part  to  any  charge  or 
specification,  the  record  will  show  the  explanation  of  the  president  and  the 
reply  of  the  accused  required  by  par.  154  {d). 


360 


MANUAL   FOR   COURTS-MARTXA.L0 


Sergt.  John  Jones,  Company , Infantry,  a  witness  for  the  prose^ 

cution,  was  sworn  and  testified  as  follows  : 

Questions  by  prosecution: 
Q.  Do  you  know  the  accused?    If  so,  state  who  he  is. 

A.  I  do ;  Pvt.  ,  Company , Infantry. 

{The  succeeding  questions  of  the  prosecution  and  their  answers  should  follow' 
in  order. y 

Questions  by  defense: 

Q. ? 

A.  . 

(//  the  defense  declines  to  cross-examine  the  tvitness,   the  record  should 
state:) 
The  defense  declined  to  cross-examine  the  witness. 

Questions  by  prosecution: 

— 9 


Q.  - 

A.  . 

Questions  by  defense: 

Q. ? 

A.  . 


Questions  by  court : 

Q. ? 

A.  . 


Prosecution:   (Insert  objection-.) 

Member:   (Insert  reply,  etc.) 

(If  the  accused  or  another  member  object,  the  record  would  proceed  in  a  cor- 
responding  way.) 

The  court  was  closed,  and  on  being  opened  the  president  announced  in  the 
presence  of  the  accused  and  his  counsel  that  the  objection  was  sustained  or  was 
not  sustained. 

(In  the  latter  case  the  record  should  continue:) 

The  question  was  then  repeated: 

A.  . 

(If  the  court  considers  it  necessary  to  hear  the  testimony  of  the  witness  read 
or  the  witness  desires  to  have  any  part  of  his  testimony  read  for  correction,  the 
record  will  show  the  fact  and  the  corrections,  if  any.) 

(After  the  proper  foundation  for  the  introduction  of  a  writing  has  been  laid 
the  record  will  continue.) 

Prosecution :  "  I  offer  in  evidence  the  "  (Describe  the  writing  or  other  pro- 
posed exhibit). 

Defense:  (Insert  his  reply.  If  there  is  no  objection  the  record  will  con- 
tinue.) 

*  The  record  should  set  forth  fully  all  the  testimony  introduced  upon  the  trial, 
the  oral  portion  as  nearly  as  practicable  in  the  precise  words  of  the  witness.  If 
the  court  should  decide  to  strike  out  any  part,  it  will  not  be  literally  stricken 
out  or  omitted  from  the  record,  but  will  not  be  thereafter  considered  as  part 
of  the  evidence. 


APPENDICES.  361 

The  paper  (o?-  other  proposed  exhibit)  was  then  received  in  evidence  and  is 
appended  marked  — ^  (insert  the  number  of  the  exhibit). 

(If  there  is  objection  the  record  will  continue  by  stating  any  further  remarks 
of  the  prosecution.) 

The  court  was  closed,  and  on  being  opened  the  president  announced  in  the 
presence  of  the  accused  and  his  counsel  that  the  objection  was  sustained  (or 
was  not  sustained). 

(//  the  objection  is  not  sustained  the  record  will  continue  as  in  the  case  where 
there  is  no  objection.  If  the  objection  is  sustained  there  will  be  no  further 
entry.) 

(If  it  is  the  defense  that  seeks  to  introduce  the  writing,  the  record  would 
proceed  in  a  corresponding  manner.) 

(At  the  close  of  the  prosecution  the  record  should  continue.) 

Prosecution:  The  prosecution  rests. 

(//  the  court  adjourns  to  meet  another  day  the  record  should  continue.) 

The  court  then,  at o'clock  — .  m.,  adjourned  to  meet  at o'clock  — .  m. 

on . 


First  Lieutenant  5th  Cavalry,  Judge  Advocate. 
Fort , ,  19—. 

The  court  met,  pursuant  to  adjournment,  at o'clock  — .  m. 

Present : 

All  the  members  of  the  court,  the  judge  advocate,  and  the  assistant  judge 
advocate." 

The  accused,  his  counsel,  and  the  reporter  were  also  present. 

(//  the  proceedings  of  the  previous  day  are  required  to  be  read,  the  fact  will 
be  recorded  i/n  the  following  form: 

The  proceedings  of were  read  and  approved,  or  corrected,  as  follows : 

(In  the  latter  case  enumerate  corrections,  giving  page  and  line  on  which  they 
occur.) 

Corpl.  John  Smith,  Company  ,  Infantry,  a  witness  for  the  de- 
fense, was  sworn  and  testified  as  follows: 
Questions  by  prosecution: 

(When  considered  desirable,  the  first  question  may  be  as  to  the  identity  of  the 
loitness.) 

Q.  Do  you  know  the  accused?    If  so,  state  who  he  is. 

A.  . 

Questions  by  defense: 

Q. ? 

A.  . 

(Should  the  accused  testify  in  his  own  behalf,  the  record  will  contvnue.) 

^All  documents  and  papers  made  part  of  the  proceedings,  or  copies  of  them, 
will  be  securely  fastened  (but  not  pasted)  to  the  record,  in  the  order  of  their 
introduction,  after  the  space  left  for  the  remarks  of  the  reviewing  authority, 
and  marked  "  1,"  "  2,"  "  3,"  etc.,  so  as  to  afford  easy  reference.  Documents  or 
other  writings,  or  matter  excluded  by  the  court  will  not  ordinarily  be  appended 
to  the  record,  but  the  record  should  simply  specify  the  character  of  the  writings 
and  the  grounds  upon  which  they  were  ruled  out. 

'  If  any  member  is  absent,  if  not  already  accounted  for,  add  "  Except — " 
{giving  cause  of  absence,  if  knoum). 


862  MANUAL   FOR   COURTS-MARTIAL, 

The  accused,  at  his  own  request,  was  sworn  and  testified  as  follows : 
Questions  by  defense : 

Q. -? 

A.  . 

(//  the  defense  offers  no  other  witness,  the  record  should  continue.) 

The  defense  had  no  further  testimony  to  offer  and  no  statement  to  make,  or, 
having  no  further  testimony  to  offer,  made  the  following  verbal  statement. 

Or,  having  no  further  testimony  to  offer,  submitted  a  written  statement, 
which  was  read  to  the  court,  and  is  hereto  appended  and  marked  — .' 

Or,  requested  until o'clock  — .  m.  to  prepare  his  defense. 

(//  the  court  takes  a  recess  during  the  time  asked  for,  the  record  will 
eontvnue.) 

The  court  then  took  a  recess  until o'clock  — .  m.,  at  which  hour  the 

members  of  the  court,  the  judge  advocate,  the  assistant  judge  advocate,  the 
accused,  his  counsel,  and  the  reporter,  resumed  their  seats. 

{Or,  if  the  court  has  other  business  before  it,  the  record  may  contirme,) 

The  court  then  proceeded  to  other  business,  and  at  o'clock  — .  m. 

resumed  the  trial  of  this  case,  at  which  hour,  etc. 

Defense:  (Insert  statement). 

Or,  The  defense  read  to  the  court  a  statement,  which  is  hereto  appended 
and  marked  — .* 

The  prosecution:  (Insert  statement). 

Or,  The  prosecution  read  to  the  court  a  statement,  which  is  hereto  appended 
and  marked  — . 

The  court  was  closed,  and  finds  the  accused : 

Of  the  specification,  Charge  I :  Guilty  or,  Not  guilty. 

Of  Charge  I :  Guilty  or  Not  guilty. 

Of  Specification  1,  Charge  II:  Guilty,  except  the  words  " ,"  substitut- 
ing therefor  the  words  " " ;  of  the  excepted  words,  "  Not  guilty  "  and  of 

the  substituted  words  "  Guilty." 

Of  Specification  2,  Charge  II :  Guilty  or  Not  guilty. 

Of  Charge  II :  GuUty  or  Not  guilty,  or  Not  guilty,  but  guilty  of . 

(If  a  soldier  is  found  guilty,  the  record  should  continue.) 

The  court  was  opened  and  the  judge  advocate  stated,  in  the  presence  of  the 
accused  and  his  counsel,  that  he  had  no  evidence  of  previous  convictions  to 
submit. 

Or,  read  the  evidence  of  previous  convictions,'  copies  of  which  are 

hereto  appended  and  marked  "  4,"  "  5,"  etc. 

(If  the  defense  has  any  statement  to  make  in  regard  to  the  previous  convic- 
tions or  statement  of  service,  it  will  be  recorded.) 

The  court  was  closed,  and  sentences  the  accused  to . 

(No  premous  convictions,  or  accused  acquitted.) 

The  court  sentences  the  accused.   Private  ,   Infantry, 

to ,  etc.,  or  acquits  the  accused. 

^The  statement  of  the  accused,  or  argument  in  his  defense,  and  all  pleas  to 
the  jurisdiction  in  bar  of  trial  or  in  abatement,  when  in  writing,  should  be 
signed  by  the  accused  himself,  referred  to  in  proceedings  as  having  been  sub- 
mitted by  him,  and  appended  to  the  record. 

^When  the  proof  produced  is  the  copy  furnished  to  the  company  or  other 
commander  it  will  be  returned  to  him  and  a  copy  of  it  attached  to  the  record, 
if  the  trial  be  by  general  court-martial.  The  copy  should  be  bound  with  the 
record  as  an  exhibit. 


APPENDICES. 

The  court,  at  —  m.,  was  opened  and  proceeded  to  other  business. 

Or,  adjourned  until  —  m.,  the instant. 

Or,  adjourned  to  meet  at  the  call  of  the  president. 


363 


Major,  5th  Cavalry,  President, 


First  Lieutenant,  5th  Cavalry,  Judge  Advocate. 


(At  least  ttco  blank  sheets  will  be  inserted  after  the  adjournment  and  before 
the  exhibits  for  the  decision  and  orders  of  the  reviewing  authority.) 


BINDING    AND    BRIEF. 


{The  papers  forming  the  complete  record  will  be  securely  bound  together  at 
the  top  {easily  removed  clips  or  paper  fasteners  will  not  be  used)  and  the 
record  folded  in  four  folds  and  briefed  on  the  first  fold,  as  follows: 


Private,  Company , Infantry, 

Trial  by  general  court-martial. 


Form  for  Revision  of  Record.^ 

Fort 


,  19—. 

The  court  reconvened  at o'clock  — .  m.,  pursuant  to  the  following  in- 
dorsement : 

{Insert  copy  of  indorsement.) 


Maj. ,  5th  Cavalry. 

Capt.  ,  Medical  Corps. 

First  Lieut.  ,  10th  Infantry. 

First  Lieut  ,  5th  Cavalry. 

Second  Lieut.  ,  Coast  Artillery  Corps. 

First  Lieut. ,  5th  Cavalry,  judge  advocate. 

Second  Lieut.  ,  29th  Infantry,  assistant  judge  advocatCo 

ABSENT. 

{Insert  names  of  absentees  and  state  cause  of  absence,  if  known.) 
The  judge  advocate  read  to  the  court  the  foregoing  indorsement  of  the  con- 
vening authority.* 

*In  case  of  the  death,  disability,  or  absence  of  the  judge  advocate,  see 
A.  W.  33.  When  the  judge  advocate  records  the  findings  and  sentence  by  the 
use  of  a  typewriting  medium  he  will  certify  immediately  after  the  authentica- 
tion of  the  record  as  follows :  '*  I  certify  that  I  recorded  the  findings  and  sen- 
tence of  the  court."  When  the  record  is  completed  the  judge  advocate  will  for- 
ward it  without  delay  to  the  appointing  authority  as  an  inclosure  to  the  in- 
dorsement of  the  judge  advocate,  returning  the  original  charges. 

*  See  "  Record  of  revision,"  par.  357,  ante.  The  court  is  usually  reconvened  by 
indorsement  on  the  charges  returning  them  to  the  president  of  the  court  with 
the  directions  of  the  appointing  authority. 

"The  record  should  show  the  name  of  each  member  of  the  court  present  dur- 
ing the  proceedings  in  revision. 

*The  judge  advocate  will  also  read  any  other  indorsements  that  may  be  con- 
nected with  the  proceedings  in  revision. 


864  MANUAL  FOR  COURTS-MARTIAL. 

The  court  was  closed  and  revokes   its   former  findings  and   sentence,   and 
finds  the  accus'^d,  etc. 

Or,  revokes  its  former  sentence  and  sentences  the  accused,  etc. 

Or,  respectfully  adheres  to  its  former  findings  and  sentence. 

07%  amends  the  record  by,  etc.* 

The  judge  advocate  was  then  recalled  and  the  court  at .  m.,  etc. 


Major,  5th  Cavalry,  President. 


First  Lieutenant,  5th  Cavalry,  Judge  Advocate. 

(The  record  of  revision  will  he  appended  to  the  original  proceedings,  follow- 
ing them  immediately,  before  the  exhibits,  and  vAll  be  forwarded  by  indorse- 
ment on  the  charges  to  the  appointing  authority.) 

"■  See  par.  364. 


APPENDIX  7. 
FORM  FOR  RECORD  OF  TRIAL  BY  A  SPECIAL  COURT-MARTIAL. 

FOBT  , 

,19—. 


The  special  court-martial  appointed  by  paragraph ,  Special  Orders,  No. 

,  Headquarters  ,  ,  19 — ^  as  modified  by  paragraph  , 


Special  Orders,  No.  ,  Headquarters  ,  met  at  ,  —  m. 

PRESENT. 
ABSENT.'' 

The  court  proceeded  to  the  trial  of  Private  ,  Company  ,  

Infantry,  who,  on  appearing  before  the  court"  (stated  that  he  did  not  desire 
counsel)   (introduced as  counsel). 

( was  sworn  as  reporter.)* 

(Capt. ,  because  ineligible,  was  excused  and  withdrew.) 

(First  Lieuts.  and  were,  upon  challenge,  excused  and  with- 
drew. ) 

The  accused  stated  that  he  had  no  objection  to  trial  by  any  member   (re- 
maining)  present. 

The  members  of  the  court  and  the  judge  advocate  were  sworn. 

The  accused  was  arraigned  upon  the  following  charges  and  specifications: 

Charge  I :  Violation  of  the aiticle  of  war. 

Specification:  In  that,  etc. 

Charge  II :  Violation  of  the article  of  war. 

Specification  1:  In  that,  etc. 

Specification  2:  In  that,  etc. 


Captain, Infantry. 


To  all  specifications  and  charges 
To  the  Specification,  Charge  I :  - 

To  Charge  I :  . 

To  Specification  1,  Charge  II :  — 
To  Specification  2,  Charge  II :  — 
To  Charge  II:  . 


*The  number,  source,  and  date  of  the  order  appointing  the  court  and  of  each 
order  modifying  the  detail  will  be  stated. 

'^  Statement  of  neither  reason  nor  authority  for  the  absence  is  required. 

^  Words  inclosed  in  parentheses  will  in  a  proper  case  be  omitted. 

*  A  judge  advocate  of  a  special  court  may,  when  authorized  by  the  appointing 
authority,  employ  a  stenographic  reporter,  to  be  paid  at  the  rates  fixed  in 
paragraph  . 

•*  If  a  special  plea  is  made,  the  record  will  set  out  in  full  the  proceedings  had 
thereon,  including  all  testimony  taken  thereon  and  statements  made  relative 
thereto,  as  well  ns  the  disposition  thereof  made  by  the  court, 

'  This  or  similar  language  will  be  used  when  the  pleas  to  all  the  specifications 
and  charges  are  the  same. 

'  For  action  when  the  accused  pleads  guilty  in  whole  or  in  part  and  evidence 
is  recorded,  see  par.  154  (d). 

365 


366  MANUAL  FOR  COURTS-MARTIAL. 

The  following-named  persons  were  sworn  and  testified: 

Sergt.  , Infantry. 

Corpl.  ,  Infantry. 

Pvt.  ^ — ,  Infantry. 

The  defense  was  given  full  opportunity  to  examine  each  witness. 

(The  depositions  of  the  following-named  persons  were  received  in  evidence 
and  are  hereto  appended  marked  — ,  — ,  — ,) 

The  accused  (at  his  own  request  was  sworn  and  testified)  (made  a  statement 
to  the  court). 

The  accused  stated  that  he  had  nothing  further  to  offer. 

The  court  was  closed  and  finds  the  accused : 

Of  all  specifications  and  charges :  .* 

Of  the  Specification,  Charge  I : <. 

Of  Charge  I :  . 


Of  Specification  1,  Charge  II : , 

Of  Specification  2,  Charge  II : . 

Of  Charge  II:  . 

(The  court  therefore  acquits  him.) 

The  court  was  opened  and  the  judge  advocate,  in  the  presence  of  the  accused 
(and  his  counsel)  (stated  that  he  had  no  evidence  of  previous  convictions  to 
submit)    (read  the  evidence  of previous  convictions.) 

(The  court  was  closed  and  sentences  the  accused  to .) 

The  court  was  opened  and  (proceeded  to  other  business)   (adjourned.)' 


Major, Infantry,  President, 


First  Lieutenant, Infantry,  Judge  Advocate. 

Approved,  ,  191 — 


Colonel f Infantry,  Commanding. 


*This  or  similar  language  will  be  used  when  the  findings  of  the  court  on  «dl 
the  specifications  and  charges  are  the  same. 

"One  copy  only  of  the  record  will  be  made.  It  will  not  be  indexed,  will  be 
briefed  as  is  a  general  court-martial  record,  and  will  be  securely  bound. 


APPENDIX  8. 
FORM  FOR  RECORD  OF  TRIAL  BY  SUMMARY  COURT. 

Charge  Sheet.  No.  in  Summary  Court  Record 


(Place.) 


(Date.) 


(Surname.)  (Christian  name.) 

Date  current  enlistment:  

Previous  service : 


(Rank  and  organization.) 
.     Rate  of  pay: 


Date  of  I  ^^^^«* 


(Give  dates,  with  character  given  on  each  discharge.) 
.  No.  of  previous  convictions  :— 


I  Confinement :  

Witnesses : 

First  Sergt.  ,  Company 

Private  ,  Company  


Infantry. 


Charge  I :  Violation  of  the  — 
Specification:  In  that,  etc. 
Charge  II :  Violation  of  the  - 
Specification  1:  In  that,  etc. 
Specification  2:  In  that,  etc. 


Infantry. 


article  of  war. 
-  article  of  war. 


Headquarters 


[1st  Ind.] 
19—.    To  Capt. 


mary  Court,  for  trial. 

By  order  of  Col. 


Infantry,  Sum- 


Captain, 


Infantry,  Adjutant. 


Findings:  (//  the  findings  as  to  all  the  specifications  and  charges  are  the 
same,  a  single  proper  entry,  such  as  "  Chiilty,''  or  "  Not  guilty,"  will  he  made. 
If  necessary,  however,  in  order  to  show  the  facts,  detailed  entries  will  he 
made. ) 

Sentence:  . 


Approved 


Captain, 


IC- 


Colonel, 


Infantry,  Summary  Court. 


Infantry,  Commanding. 
367 


APPENDIX  9. 
FORMS  FOR  SENTENCES. 


(For  forms  for  action  by  reviewing  authority  ou  sentences  by  courts-martial, 
see  Appendix  10.) 

A  sentence  adjudged  by  a  court-martial  will,  in  a  proper  case,  be  expressed 
substantially  in  one  or  another  of  the  forms  following.  When  desirable,  in  a 
proper  case,  two  or  more  of  the  forms  may  be  combined. 

1.  To  have  his  pay  for days  detained. 

2.  To  have  two-thirds  (or  other  fraction)  of  his  pay  per  month  for  ■' 
months  detained. 

3.  To  forfeit  days'  pay. 

4.  To  forfeit  two-thirds  (or  other  fraction)  of  his  pay  per  month  for 

months. 

5.  To  perform  hard  labor  for days  {or  months). 

6.  To  be  confined  at  hard  labor  for days  {or  months). 

7.  To  be  confined  at  hard  labor,  at  such  place  as  the  reviewing  authority  may 
direct,  for  days  {or  months  or  years). 

8.  To  be  confined  at  hard  labor,  at  such  place  as  the  reviewing  authority  may 

direct,  for months  and  to  forfeit  two-thirds  {or  other  fraction)  of  his  pay 

per  month  for  a  like  period. 

9.  To  be  dishonorably  discharged  the  service  and  to  forfeit  all  pay.  and  allow- 
ances due  or  to  become  due. 

10.  To  be  dishonorably  discharged  the  service,  to  forfeit  all  pay  and  allowances 
due  or  to  become  due,  and  to  be  confined  at  hard  labor,  at  such  place  as  the 

reviewing  authority  may  direct,  for days  {or  months  or  ye?rs).     (C.  M. 

C.  M.,  No.  1.) 

11.  To  be  reduced  to  the  ranks. 

12.  To  vacate  all  rights  and  privileges  arising  from  his  certificate  of  eligibility. 

13.  To  be  admonished. 

14.  To  be  reprimanded. 

15.  To  be  restricted  to  the  limits  of  his  post   {or  other  place)   for 

months. 

16.  To  be  suspended  from  duty  for months. 

17.  To  be  suspended  from  command  for  months. 

18.  To  be  suspended  from  rank  for months. 

19.  To  be  reduced  in  rank files. 

20.  To  be  reduced  in  rank  so  that  his  name  shall  appear  in  the  lineal  list  of 
ofiicers  of  his  arm  next  below  that  of . 

21.  To  be  dismissed  the  service. 

22.  To  pay  to  the  United  States  a  fine  of dollars  and  to  be  confined  at 

hard  labor,  at  such  place  as  the  reviewing  authority  may  direct,  until  said  fine 
is  so  paid,  but  for  not  more  than months  {or  years). 

91487°— 17 25  ^^^ 


370  MANUAL  FOR  COURTS-MARTIAL. 

23.  To  pay  to  the  United  States  a  fine  of dollars,  to  be  confined  at  hard 

labor,  at  such  place  as  the  reviewing  authority  may  direct,  for  months 

(or  years),  and  to  be  further  confined  at  hard  labor  until  said  fine  is  so  paid, 

but  for  not  more  than  —  months   (or  years),  in  addition  to  the  • 

months  (or  years)  hereinbefore  adjudged. 

24.  To  be  confined  at  hard  labor,  at  such  place  as  the  reviewing  authority  may 
direct,  for  the  term  of  his  natural  life. 

25.  To  be  shot  to  death  with  musketry.  ' 

26.  To  be  hanged  by  the  neck  until  dead. 


APPENDIX  10. 
FORMS  FOR  ACTION  BY  REVIEWING  AUTHORITY. 


(For  forms  for  seatences  see  Appendix  9.) 

The  following  forms  will  serve  as  a  general  guide  for  reviewing  authorities 
in  recording,  in  cases  in  which  such  forms  are  appropriate,  their  action  on 
sentences  imposed  by  courts-martial.  In  a  proper  case  the  substance  of  two 
or  more  of  the  forms  may  be  combined.  Likewise,  the  action  as  recorded  may 
contain  proper  matter  additional  to  that  set  out  in  any  of  the  several  forms. 

A.  FORMS  FOR  ORIGINAL  ACTION. 

1     Approved   (or  disapproved)  ,  191 — . 


Colonel, 


Infantry,  Commanding. 


Headquarters 


191—. 


Approved  (or  disapproved). 


3     Approved  and  suspended 


Colonel, 
-,  191—. 


Infantry,  Commanding. 


Colonel, 


—  Infantry,  Commanding. 
4     Approved,  and  forfeiture  (or  confinement)  suspended,  ,  191 — . 


Colonel, 


Infantry,  Commanding. 


Headquarters 


191- 


In  the  foregoing  case  of 


-,  the  sentence  is  approved  and  will  be  duly 


executed  (or  is  disapproved). 


6 
In  the  foregoing  case  of 


Colonel, 


Infantry,  Commanding. 


Headquarters 


191—. 


—  the  sentence  is  approved,  but  owing  to  the 
length  of  time  the  accused  has  been  in  confinement days  (or  months)  of 


the  confinement  imposed  are  remitted, 
duly  executed. 


As  thus  modified  the  sentence  will  be 


CoUmeL 


Infantry,  Commanding. 


Headquarters 


191—. 


In  the  foregoing  case  of 


the  findings  of  Specifications  1  and  2,  Charge 


II,  are  disapproved.    The  sentence  is  approved  and  will  be  duly  executed. 


Colonel, 


Infantry,  Commanding. 
371 


372  MAI^UAL   FOR   COUKTS-MAETIAL. 

8  Headquarters  , ,  191 — . 

In   the  foregoing  case  of  only   so   much  of  the  findings   of  guilty 

of  the  specification  of  Charge  I  and  of  Charge  I  as  involves  a  finding  of  guilty 

of  absence  without  leave  from  to  ,  terminated  by  apprehension 

(or  surrender)   is  approved.     Only  so  much  of  the  sentence  as  provides  for 
is  approved  and  will  be  duly  executed. 


Colonel,  Infantry,  Commanding. 

9  Headquarters  , ,  191 — . 

In  the  foregoing  case  of the  sentence  is  approved,  but  the  execution 


thereof  is  suspended. 


Colonel,  Infantry,  Commandmg. 


10  Headquarters ,  ,  191 — . 

In  the  foregoing  case  of  the  sentence  is  approved  but  the  execution 

thereof,   in  so  far  as  it  relates  to  forfeiture  of  pay    (or  to  confinement)    is 
suspended. 


Colonel,  Infantry,  Commanding. 

11  Headquarters  ,  ,  191 — . 

In  the  foregoing  case  of  the  sentence  is  approved  and  will  be  duly 

executed  but  the  execution  of  that  portion  thereof  adjudging  dishonorable  dis- 
charge is  suspended  until  the  soldier's  release  from  confinement.     is 

designated  as  the  place  of  confinement. 


Colonel,  Infantry,  Commanding. 

12  Headquarters , ,  191—. 

In  the  foregoing  case  of  the  sentence  is  approved  and  will  be  duly 

executed.    is  designated  as  the  place  of  confinement. 


Colonel,- Infantry,  Commandi/ng. 

13  Headquarters , ,  191 — . 

In  the  foregoing  case  of it  appears  from  the  record  of  trial  that  the 

officer  who  had  subscribed  the  charges  participated  as  a  member  of  the  court  in 
the  findings  and  sentence.  As  such  officer  is  prima  facie  the  accuser  in  the 
case,  and  as  the  record  of  trial"  contains  nothing  to  indicate  that  the  court 
upon  investigation  arrived  at  a  finding  that  he  was  not  in  fact  such  accuser, 

the  proceedings  are,  in  view  of  the  provisions  of  the  article  of  war, 

invalid. 


Colonel,  Infantry,  Commanding. 

14  Headquarters  ,  ,  191 — . 

In  the  foregoing  case  of it  appears  from  the  record  of  trial  that  an 

officer  who  testified  as  a  witness  for  the  prosecution  participated  as  a  member 
of  the  court  in  the  findings  and  sentence.  In  view  of  the  provisions  of  the 
article  of  war  the  proceedings  are  invalid. 


Colonel,  Infantry,  Commanding. 


APPENDICES.  373 

15  Headquarters , ,191 — .     To . 

In  the  foregoing  case  of  the  sentence  is  approved  and  the  record  of 

trial  is  forwarded  for  action  under  the  forty-eighth  article  of  war. 


Colonel,  Infantry,  Commanding. 

16       Headquarters ,  ,  191 — .     To  the  Judge  Advocate  General 

of  the  Army. 

In  the  foregoing  case  of  the  sentence  is  approved,  but  the  execution 

tliereof  is  suspended  until  the  pleasure  of  the  President  be  known,  and  the 
record  of  trial  is  forwarded  for  action  under  the  fifty-first  article  of  war. 


Colonel,  Infantry,  Commanding. 

17  Headquarters , ,  191 — . 

In  the  foregoing  case  of  the  sentence  is  approved  and  will  be  duly 

executed  at  on  ,  191 — ,  under  the  direction  of  the  commanding 


Colonel,  Infantry,  Commanding. 

18  Headquarters , ,  191 — . 

In  the  foregoing  case  the  sentence  is  confirmed  and  will   be  duly 

executed  at  on  ,  191 — ,  under  the  direction  of  the  commanding 


Colonel,  Infantry,  Commanding. 

B.  FORMS  FOR  ORDERS  VACATING  SUSPENSIONS. 

Headquarters , ,  191 — . 

1     So  much  of  the  order  published  in  Court-Martial  Order  No.  — , 

— ,  191 — ,  these  headquarters, ,  191 —  {or  found  in  a  record  of  trial 

by  summary  court  approved  ,  191 — ),  as  suspends  execution  of  sentence 

in  the  case  of is  vacated  and  said  sentence  will  be  carried  into  execution. 

By  order  of  Col.  . 


,  Adjutant. 

Headquarters , ,  191 — . 

2     So  much  of  the  order  published  in  Court-Martial  Order  No.  — , 

,  191 — ,  these  headquarters, ,  191 —  {or  found  in  a  record  of  trial 

by  summary  court  approved ;  191 — ),  as  suspends  execution  of  sentence 

to  confinement  {or  forfeiture  of  pay)  in  the  case  of is  vacated  and  that 

part  of  said  sentence  will  be  carried  into  execution. 

By  order  of  Col.  . 


Adjutant. 


Headquarters , ,  191 — . 

3  So  much  of  the  order  published  in  General  Court-Martial  Order  No.  — , 
,  191 — ,  these  headquarters,  as  suspends  execution  of  sentence  to  dis- 
honorable discharge  in  the  case  of  is  vacated  and  that  part  of  said 

sentence  will  be  carried  into  execution. 

■  By  order  of  Ccl. . 


Adjutant, 


APPENDIX  11. 
COURT-MARTIAL  ORDERS. 


A.  FORM  FOR  GENERAL  COURT-MARTIAL  ORDER. 

General  Court-Maktial 
Order  No.  447. 

^  Headquarters  Eastern  Department, 

Governors  Island,  N.  Y.,  July  27,  1919, 

Before  a  general  court-martial  which  convened  at  Port  Hamilton,  N.  Y., 
pursuant  to  paragraph  6,  Special  Orders,  No.  93,  Headquarters  Eastern  De- 
partment, April  24,  1919,^  as  modified  by  paragraph  7,  Special  Orders,  No.  101, 
Headquarters  Eastern  Department,  May  26,  1919,  was  arraigned  and  tried : 

Private  John  Doe,  Company  F,  29th  Infantry. 

Charge  I :  Violation  of  the  58th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  Infantry,  did  at 
Fort  Jay,  N.  Y.,  on  or  about  March  27,  1917,  desert  the  service  of  the  United 
States  and  did  remain  absent  in  desertion  until  he  was  apprehended  at  Brooli- 
lyn,  N.  Y.,  on  or  about  June  30,  1919. 

Charge  II :  Violation  of  the  84th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  Infantry,  did  at 
Fort  Jay,  N.  Y.,  on  or  about  March  27,  1917,  through  neglect,  lose  one  overcoat, 
olive  drab,  value  $14.84,  and  one  blanket,  light  weight,  value  $3.79,  issued  for 
use  in  the  military  service. 

PLEAS. 

To  the  specification.  Charge  I :  "  Not  guilty."^ 

To  Charge  I :  "  Not  guilty." 

To  the  specification,  Charge  II :  "  Not  guilty." 

To  Charge  II :  "  Not  guilty."  * 

Or 

To  all  the  specifications  and  charges:  "Not  guilty.*** 

FINDINGS. 

Of  the  specification,  Charge  I :  "  Guilty." ' 

Of  Charge  I :  "  Guilty." 

Of  the  specification.  Charge  II :  "  Guilty." 

^The  orders  appointing  the  court  and  all  orders  modifying  the  convening 
order  will  be  cited. 

'A^'^here  the  accused  pleads  guilty  or  not  guilty  to  all  the  specifications,  or  is 
found  guilty  or  not  guilty  of  all,  the  form  may  be  abbreviated  as  indicated. 

'If  a  special  plea  has  been  made  and  sustained  hy  the  court,  the  wording 

will  be :  "  Plea  in ( )  sustained  by  the  court." 

375 


876  MANUAL   FOR  COURTS-MAKTIAL. 

Of  Charge  II :  "  Guilty." 

Or 

Of  all  the  specifications  and  charges :  "  Guilty."  * 

SENTENCE. 

To  tc  dishonorably  discharged  the  service;  to  forfeit  all  pay  and  filloiJoances 
due,  or  to  become  due;  and  to  he  confined  at  hard  labor  at  such  place  as  the 
rcvieicing  authority  may  direct  for  two  years.  (Four  previous  convictions 
considered. ) 

The  sentence  is  approved  and  will  be  duly  executed.  The  United  States  Dis- 
ciplinary Barracks  is  designated  as  the  place  of  confinement. 

By  command  of . 


Colonel,  General  Staff,  Chief  of  Staff. 
Official : 


Adjutant  General,  Adjutant. 
(C.  M.  C.  M.,  No.  1.) 

B.  FORM  FOR  SPECIAL  COURT-MARTIAL  ORDER. 

Special  Coxtrt-Mabtial 
Oeder  No.  43. 

Headquarters  Fort  Jay,  N.  Y.,  July  27,  1919. 

Before  a  special  court-martial  which  convened  at  Fort  Jay,  N.  Y.,  pursuant 
to  paragraph  6,  Special  Orders,  No.  93,  these  headquarters,  April  24,  1919,  as 
modified  by  paragraph  7,  Special  Orders,  No.  101,  these  headquai'ters,  May  26, 
1919,  was  arraigned  and  tried: 

Private  John  Doe,  Company  F,  29th  Infantry. 

Charge  I :  Violation  of  the  58th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  Infantry,  did  at 
Fort  Jay,  N.  Y.,  on  or  about  March  27,  1917,  desert  the  senice  of  the  United 
States  and  did  remain  absent  in  desertion  until  he  was  apprehended  at  Brook- 
lyn, N.  Y.,  on  or  about  June  30,  1919. 

Charge  II :  Violation  of  the  84th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  Infantry,  did  at 
Fort  Jay,  N.  Y.,  on  or  about  March  27,  1917,  through  neglect,  lose  one  overcoat, 
olive  drab,  value  $14.84,  and  one  blanket,  light  weight,  value  $3.29,  Issued  for 
use  In  the  military  service. 


To  the  specification,  Charge  I :  "  Not  guilty." 

To  Charge  I :  "  Not  guilty." 

To  the  specification,  Charge  II :  "  Not  guilty." 

To  Charge  II :  "  Not  guilty." 

Or 

To  all  the  specifications  and  charges :  "  Not  guilty.'*  ^ 

^Where  the  accused  pleads  guilty  or  not  guilty  to  all  the  specifications  or 
is  found  guilty  or  not  guilty  of  all,  the  form  may  be  abbreviated  as  indicated. 

^If  a  special  plea  has  been  made  and  sustained  by  the  court,  the  wording  will 
be:  "  Plea  in ( )  sustained  by  the  court." 


APPEXDICES.  377 

FINDINGS. 

Of  the  specification,  Charge  I:  "Guilty."* 

Of  Charge  I :  "  Guilty." 

Of  the  specification,  Charge  II :  "  Guilty." 

Of  Charge  II :  "  Guilty." 

Or 

Of  all  the  specifications  and  charges:  "Guilty."' 

SENTENCE. 

To  be  confined  at  hard  labor  for  six  months  and  to  forfeit  two-thirds  of  his 
pay  per  month  for  a  like  period.     (Two  previous  convictions  considered.) 
The  sentence  is  approved. 

By  order  of . 

Official :  , 

,  Adjutant. 


Adjutant. 


*  If  a  special  plea  has  been  made  atid  sustained  dy  the  court,  the  wording  will 
be:  "  Plea  in ( )  sustained  by  the  court." 

'Where  the  accused  pleads  guilty  or  not  guilty  to  all  the  specifications  or 
is  found  guilty  or  not  guilty  of  all,  the  form  may  be  abbreviated  as  indicated. 


APPENDIX  12. 
INTERROGATORIES  AND  DEPOSITION. 


To  be  read  in  evidence  before  a  ^ ,  United  States  Army,  appointed  ta 

meet  at  —. ,  by  paragrapli  — ,  Special  Orders,  No.  — ,  Headquarters  ^ 

^ ,  191 — ,  in  the  case  of  (in  the  matter  of)'' . 


— ,  191—.    To 


Please  cause  to  be  taken  on  the  interrogatories  herein  contained  the  deposi- 
tion of ,  to  be  found  at . 

a 

Headquaeters ,  191 — .     To ^, 


who  will  take  or  cause  to  be  taken  *  the  deposition  of  the  person  named  above 
on  the  interrogatories  herein  contained." 

By of : 

,  Adjutant, 


First  interrogatory:  Are  you  in  the  military  service  of  the  United  States? 
If  so,  what  is  your  full  name,  rank,  organization  and  station?  If  not,  what  is 
your  full  name,  occupation  and  residence? 

Answer  :  *  •. 


Second  interrogatory:  — . 

Answer:  . 

First  cross-interrogatory :  , 

Answer :  . 

First  interrogatory  hy  the : 

Answer:  . 

(Witness  sign  here) 


I  certify  that  the  above  deposition  was  duly  taken  by  me,  and  that  the  above- 
named  witness,  having  been  first  duly  sworn  by  me,  gave  the  foregoing  answers 

*  General  {or  special  or  summary)  court-martial,  or  military  commission,  or 
court  of  inquiry,  or  military  board. 

'  Name,  rank,  and  organization  of  the  accused,  or  other  proper  words  identify- 
ing the  particular  matter  in  which  the  deposition  is  desired  to  be  used. 

'To  be  subscribed  by  the  trial  judge  advocate  or  other  proper  person  with 
his  name,  rank,  organization,  and  official  title,  as  "  judge  advocate,"  "  summary 
court,"  "  recorder,"  etc. 

*  Strike  out  word  or  words  not  used. 

"If  it  is  desired  to  give  special  instructions,  or  if  a  travel  order  is  necessary, 
the  remaining  space  will  be  used  for  the  purpose. 

"  If  the  spaces  for  answers  are  not  sufficient,  extra  sheets  may  be  inserted  by 
the  officer  taking  the  deposition.  In  such  ease  he  will  rewrite  the  interroga- 
tories, writing  the  answers  immediately  below  the  respective  interrogatories. 

379 


380  MANUAL    FOE    COTJBTS-MARTIAL. 

to  the  several  interrogatories,  and  that  he  subscribed  the  foregoing  deposition 

in  my  presence  at ,  this day  of ,  191 — . 

(Name) , 

(Ranlv  and  organization) . 


(Official  character,  as  "summary  court,"  "officer  designated  to  take  the  depo- 
sition," "notary  public,"  etc.) 


[back.] 
Instructions. 

1.  Interrogatories,  how  submitted. —  (a)  The  party  desiring  the  deposition 
submits  to  the  opposite  party  the  interrogatories  which  he  ^yishes  propounded 
to  the  person  whose  deposition  he  desires,  and  the  opposite  party  then  submits 
to  him  such  cross-interrogatories,  if  any,  as  he  may  desire.  Such  additional 
direct  and  cross  interrogatories  may  be  submitted  as  desired ;  or 

(6)  The  party  desiring  the  deposition  submits  to  the  court,  military  commis- 
sion, or  board  the  interrogatories  which  he  wishes  propounded  to  the  person 
whose  deposition  he  desires.  The  opiX)site  party  then  submits  to  the  court, 
military  commission,  or  board  such  cross-interrogatories,  if  any,  as  he  may 
desire.  The  court,  military  commission,  or  board  then  submits  such  additional 
interrogatories  as  they  may  deem  proper  and  desirable,  and  such  additional 
direct  and  cross  interrogatories  may  be  submitted  as  are  desired ;  or 

(c)  Where  the  court,  military  commission,  or  board  desires  that  the  depo- 
sition of  a  particular  person  be  obtained  it  will  cause  interrogatories  to  be 
prepared  accordingly.  The  prosecution  and  defense  (or  other  party  or  parties 
in  interest)  tlien  submit  such  intecrogatories  as  they  may  desire.  Such  addi- 
tional interrogatories  may  be  included  as  are  desired  by  the  court,  military 
commission,  or  board,  or  by  a  party  in  interest.     (M.  C.  M.  par.  176.) 

2.  Procedure  to  obtain  deposition. —  (a)  All  the  interrogatories  to  be  pro- 
pounded to  the  person  are  entered  upon  the  form  for  interrogatories  and 
deposition,  and  the  trial  judge  advocate,  summary  court,  or  recorder  will  take 
appropriate  steps  to  cause  the  desired  deposition  to  be  taken  with  the  least 
practicable  delay.  In  the  ordinary  case  he  will  either  send  the  interrogatories 
to  the  commanding  officer  of  the  post,  recruiting  station,  or  other  military  com- 
mand at  or  nearest  which  the  person  whose  deposition  is  desired  is  stationed, 
resides,  or  is  understood  to  be,  or  will  send  them  to  some  other  responsible 
person,  preferably  a  person  competent  to  administer  oaths,  at  or  near  the  place 
at  which  the  person  whose  deposition  is  desired  is  understood  to  be.  In  a 
proper  case  the  interrogatories  may  be  sent  to  the  department  or  other  superior 
commander,  or  to  the  witness  himself,  and  in  any  case  they  will,  when  neces- 
sary, be  accompanied  by  a  proper  explanatory  letter. 

(6)  When  interrogatories  are  received  by  a  commanding  officer  he  will 
either  take  or  cause  to  be  taken  the  deposition  thereon.  He  may  send  an  in- 
telligent enlisted  man — preferably  a  noncommissioned  officer,  if  available — to 
the  necessary  place  for  the  purpose  of  obtaining  the  deposition,  or  he  may 
properly  arrange  by  mail  or  otherwise  that  the  deposition  be  taken.  The  dep- 
osition will  be  taken  with  the  least  practicable  delay,  and  when  taken  will  be 
sent  at  once  direct  to  the  judge  advocate  of  the  court-martial  trying  the  case,  or 
other  proper  person. 

(c)  If  the  witness  whose  deposition  is  desired  is  a  civilian,  the  judge  advo- 
cate, or  other  proper  person  sending  interrogatories  as  above,  will  inclose  with 


APPENDICES.  381 

them  a  prepared  voucher  for  the  fees  and  mileage  of  the  witness,  leaving  hlank 
such  spaces  provided  therein  as  it  may  be  necessary  to  leave  blank,  accom- 
panied by  the  required  number  of  copies  of  the  orders  appointing  the  court, 
military  coumiission,  or  board.  The  judge  advocate,  summary  court,  or  recorder 
will  also  send  with  the  interrogatories  duplicate  subpoena  requiring  the  witness 
to  appear  in  person  at  a  time  and  place  to  be  fixed  by  the  officer,  military  or  civil, 
who  is  to  take  the  deposition.  If  the  name  of  this  officer  is  not  known,  the 
space  provided  for  it  will  be  left  blank.  If  a  military  officer  takes  the  depo- 
sition, he  w'ill  complete  the  witness  voucher,  certify  it,  and  transmit  it  to  the 
nearest  disbursing  quartermaster  for  payment.  When  the  deposition  is  to  be 
taken  by  a  civil  officer,  he  will  be  asked  to  obtain  and  furnish  to  the  military 
officer  requested  or  designated  to  cause  the  deposition  to  be  taken  the  neces- 
sary data  for  the  completion  of  the  witness  voucher,  and  the  latter  will  com- 
plete the  voucher,  certify  it,  and  transmit  it  to  the  nearest  disbursing  quarter- 
master for  payment.  In  the  case  of  a  military  witness,  a  subpoena  will  not  ac- 
company the  interrogatories,  but  the  officer  before  whom  the  deposition  is  to  be 
taken  will  take  the  necessary  steps  to  have  the  witness  appear  at  the  proper 
time  and  place.     (M.  C.  M.,  par.  177.) 

3.  Payment  of  civilian  witnesses,  etc. —  (a)  A  civilian,  not  in  Government 
employ,  duly  summoned  to  appear  as  a  witness  before  a  military  court,  com- 
mission or  board,  or  at  a  place  where  his  deposition  is  to  be  taken  for  use  before 
such  military  court,  commission  or  board,  will  receive  $1.50  for  each  day  of  his 
actual  attendance  before  such  military  court,  commission  or  board,  or  for  the 
purpose  of  having  his  deposition  taken,  and  5  cents  a  mile  for  going  from  his 
place  of  residence  to  the  place  of  trial  or  of  the  taking  of  his  deposition,  and  5 
cents  a  mile  for  returning,  except  as  follow^s : 

(1)  In  Porto  Rico  and  Cuba  he  will  receive  $1.50  a  day  while  in  attendance 
as  above  stated,  and  15  cents  for  each  mile  necessarily  traveled  over  stage 
line  or  by  private  tionveyance,  and  10  cents  for  each  mile  over  any  railway 
or  steamship  line. 

(2)  In  Alaska,  east  of  the  one  hundred  and  forty-first  degree  of  w^est  longi- 
tude, he  will  receive  $2  a  day  while  in  attendance  as  above  stated,  and  10  cents 
a  mile ;  and  w^est  of  said  degree  $4  a  day  and  15  cents  a  mile. 

(3)  In  .the  States  of  Wyoming,  Montana,  Washington,  Oregon,  California, 
Nevada,  Idaho,  Colorado,  Utah,  New  Mexico,  and  Arizona  he  will  receive  $3  a 
day  for  the  time  of  actual  attendance  as  above  stated,  and  for  the  time  neces- 
sarily occupied  in  going  to  and  returning  from  the  same,  and  15  cents  for  each 
mile  necessarily  traveled  over  any  stage  line  or  by  private  conveyance,  and  5 
cents  for  each  mile  by  any  railway  or  steamship.     (M.  C.  M.,  par.  185.) 

(&)  Civil  officers  before  whom  depositions  are  taken  for  use  in  the  military 
service  will  be  paid  the  fees  allowed  by  the  law  of  the  place  where  the  deposi- 
tions are  taken.     (M.  C.  M.,  par.  181.) 

4.  Articles  of  "War. 

Art.  26.  Depositions — before  whom  taken. — Depositions  to  be  read  in  evi- 
dence  before  military  courts,  commissions,  courts  of  inquiry,  or  military  boards, 
or  for  other  use  in  military  administration,  may  be  taken  before  and  authenti- 
cated by  any  officer,  military  or  civil,  authorized  by  the  laws  of  the  United 
States  or  by  the  laws  of  the  place  where  the  deposition  is  taken  to  administer 
oaths. 

Art.  114.  Authority  to  administer  0ATHS.--Any  judge  advocate  or  acting 
judge  advocate,  the  president  of  a  general  or  special  court-martial,  any  summary 
court-martial,  the  judge  advocate  or  any  assistant  judge  advocate  of  a  general 
or  special  court-martial,  the  president  or  the  recorder  of  a  court  of  inquiry  or 


382  MANUAL  FOB  COURTS- MARTIAL. 

of  a  military  board,  any  officer  designated  to  take  a  deposition,  any  officer  de- 
tailed to  conduct  an  investigation,  and  the  adjutant  of  any  command  shall  have 
power  to  administer  oaths  for  the  purposes  of  the  administration  of  military 
justice  and  for  other  purposes  of  military  administration;  and  in  foreign 
places  where  the  Army  may  be  serving  shall  have  the  general  powers  of  a 
notary  public  or  of  a  consul  of  the  United  States  in  the  administration  of  oaths, 
the  execution  and  acknowledgment  of  legal  instruments,  the  attestation  of 
documents,  and  all  other  forms  of  notarial  acts  to  be  executed  by  persons  sub- 
ject to  military  law. 

5.  Taking  depositions  in  foreign,  country. — If  the  evidence  desired  from  a 
witness  residing  in  a  foreign  country  is  necessary  and  material  and  is  desired 
to  be  read  before  a  court-martial,  military  commission,  court  .of  inquiry,  or 
military  board  sitting  within  any  Of  the  States  of  the  Union  or  the  District 
of  Columbia,  interrogatories  (accompanied  by  the  necessary  vouchers  for  fees 
and  mileage)  will  ordinarily  be  forwarded  through  military  channels  to  The 
Adjutant  General  of  the  Army.  They  will  then  be  transmitted  by  the  Secretary 
of  War  to  the  Secretary  of  State  with  the  request  that  they  be  sent  to  the 
proper  consul  of  the  United  States  and  the  deposition  of  the  witness  taken. 
In  the  case  of  troops  serving  along  the  international  boundaries  outside  of  the 
United  States  proper,  or  in  foreign  countries,  the  officer  exercising  general 
court-martial  jurisdiction  may,  in  his  discretion,  detail  an  officer  to  take  the 
deposition  of  a  civilian  witness  or  he  may  send  the  interrogatories  direct  to  the 
consul  of  the  United  States  nearest  the  place  of  residence  of  the  witness  with 
the  request  that  the  deposition  be  taken.  In  the  latter  case  the  interrogatories 
will  be  accompanied  by  the  proper  vouchers  for  the  fees  and  mileage  of  the 
witness.     (M.  G.  M.,  par.  182.) 


APPENDIX  13. 
SUBPOENA  FOR  CIVILIAN  WITNESS. 


The  Pbesident  of  the  United  States  to ,  greeting : 

You  are  hereby  summoned  and  required  to  be  and  appear  in  person  on  the 

day  of ,  191 — ,  at o'clock  —  m.,*  before ,'  a ,* 

designated  to  tsike  your  deposition  to  be  read  in  evidence  before  a  * of 

the  United  States,  at  ,  appointed  to  meet  by  paragraph  ,  Special 

Orders,  No.  ,  Headquarters ,  dated  ,  191 — ,  then  and  there 

to  testify  and  give  evidence  as  a  witness  for  the in  the  case  of  ^ , 

°  and  you  are  hereby  required  to  bring  with  you,  to  be  used  in  evidence  in  said 

case,  the  following  described  documents,  to  wH : . 

And  have  you  then  and  there  this  precept. 
Dated  at this day  of ,  191—. 


(To  be  subscribed  by  judge 
advocate,  recorder,  etc.) 

The  loitness  is  requested  to  subscribe  on  one  copy  of  the  subpoena  the  follow- 
ing and  to  return  to  the  person  serving  the  subpoena  the  copy  thereof  so 
subscribed. 


,  191—. 

I  hereby  accept  service  of  the  above  subpoena. 


Form  No.  76,  A.  G.  O.  (Signature  of  witness.) 

[back.] 

Personally    appeared   before   me   the   undersigned    authority,   ,    who, 

being  first  duly  sworn  according  to  law,  deposes  and  says  that  at  on 

,  191 — ,  he  personally  delivered  to  in  person  a  duplicate  of  the 

within  subpcena. 


Subscribed  and  sworn  to  before  me  at this day  of ,  191- 


(Rank,  organization,  and  oflQcial  character.) 


^  Line  out  when  inappropriate  "  before  ,  a  designated  to  take 

your  deposition  to  be  read  in  evidence." 

'When  used,  enter  name,  rank,  and  organization,  if  any. 

"  When  used,  enter  official  character,  if  any,  such  as  judge  advocate,  sum- 
mary court,  notary  public,  etc. 

*  General  (or  special,  or  summary)  court-martial,  etc. 

"  Enter  name,  etc.,  of  accused  or  other  subject  of  investigation. 

•  Line  out  when  inappropriate  "  and  you  are  hereby  required  to  bring  with 
you,  to  be  read  in  evidence  in  said  case,  the  following  described  documents, 
to  wit." 

383 


384  manual  for  couets -martial. 

Instructions. 

1.  Articles  of  war. —  (a)  Process  to  obtain  icitncsscs. — Every  judge  advocate 
of  a  general  or  special  court-martial  and  every  summary  court-martial  shall 
have  power  to  Issue  the  like  process  to  compel  witnesses  to  appear  and  testify 
which  courts  of  the  United  States,  having  criminal  jurisdiction,  may  lawfully 
issue;  but  such  process  shall  run  to  any  part  of  the  United  States,  its  Ter- 
ritories, &nd  possessions.     (A.  W.  22.) 

(6)  Refusal  to  appear  or  testify. — Every  person  not  subject  to  military  law 
who,  being  duly  subpoenaed  to  appear  as  a  witness  before  any  military  court, 
commission,  court  of  inquiry,  or  board,  or  before  any  officer,  military  or  civil, 
designated  to  take  a  deposition  to  be  read  in  evidence  before  such  court,  com- 
mission, court  of  inquiry,  or  board,  willfully  neglects  or  refuses  to  appear,  or 
refuses  to  qualify  as  a  witness,  or  to  testify,  or  produce  documentary  evidence 
which  such  person  may  have  been  legally  subpoenaed  to  produce,  shall  be 
deemed  guilty  of  a  misdemeanor,  for  which  such  person  shall  be  punished 
on  information  in  the  district  court  of  the  United  States  or  in  a  court  of 
original  criminal  jurisdiction  in  any  of  the  territorial  possessions  of  the  United 
States,  jurisdiction  being  hereby  conferred  upon  such  courts  for  such  purpose; 
and  it  shall  be  the  duty  of  the  XJuited  States  district  attorney  or  the  officer 
prosecuting  for  the  Government  in  any  such  court  of  original  criminal  juris- 
diction, on  the  certification  of  the  facts  to  him  by  the  military  court,  com- 
mission, court  of  inquiry,  or  board,  to  file  an  information  against  and  prosecute 
the  person  so  offending,  and  the  punishment  of  such  person,  on  conviction,  shall 
be  a  fine  of  not  more  than  $500  or  imprisonment  not  to  exceed  six  months,  or 
both,  at  the  discretion  of  the  court :  Provided,  That  the  fees  of  such  witness  and 
his  mileage,  at  the  rates  allowed  to  witnesses  attending  the  courts  of  the  United 
States,  shall  be  duly  paid  or  tendered  said  witness,  such  amounts  to  be  paid 
out  of  the  appropriation  for  the  compensation  of  witnesses.     (A.  W.  23.) 

2.  Tender  of  fees  preliminary  to  prosecution. — In  case  a  civilian  witness  is 
duly  subpoenaed  under  the  authority  of  A.  W.  22  and  willfully  neglects  or 
refuses  to  appear  or  refuses  to  qualify  as  a  witness,  or  to  testify  or  produce 
documentary  evidence,  which  he  may  have  been  legally  subpoenaed  to  produce, 
he  will  at  once  be  tendered  or  paid  by  the  nearest  quartermaster  one  day's  fees 
and  mileage  for  the  journeys  to  and  from  the  court,  and  will  thereupon  be  again 
called  upon  to  comply  with  the  requirements  of  the  law.  Upon  failing  the 
second  time  to  comply  with  the  requirements  of  the  law,  a  complete  report  of 
the  case  will  be  made  to  the  officer  exercising  general  court-martial  jurisdiction 
over  the  command  with  a  view  to  presenting  the  facts  to  the  Department  of 
Justice  for  the  punitive  action  contemplated  in  A.  W.  23.     (M.  €.  M.  172.) 

3.  Civilians  not  in  Government  employ. — A  civilian  not  in  Government  employ, 
duly  summoned  to  appear  as  a  witness  before  a  military  court,  commission,  or 
board,  or  at  a  place  where  his  deposition  is  to  be  taken  for  use  before  such  court, 
commission,  or  board,  will  receive  $1.50  for  each  day  of  his  actual  attendance 
before  such  court,  commission,  or  board,  or  for  the  purpose  of  having  his  deposi- 
tion taken,  and  5  cents  a  mile  for  going  from  his  place  of  residence  to  the  place 
of  trial  or  of  the  taking  of  his  deposition,  and  5  cents  a  mile  for  returning, 
except  as  follows : 

(a)  In  Porto  Rico  and  Cuba  he  will  receive  $1.50  a  day  while  in  attendance, 
as  above  stated,  and  15  cents  for  each  mile  necessarily  traveled  over  stage 
line  or  by  private  conveyance,  and  10  cents  for  each  mile  over  any  railway  or 
steamship  line. 


APPENDICES.  '  385 

(&)  In  Alaska  east  of  the  one  hundred  and  forty-first  degree  of  west  longi- 
tude he  will  receive  $2  a  day  while  in  attendance  as  above  stated  and  10  cents 
a  mile,  and  west  of  said  degree  $4  a  day  and  15  cents  a  mile. 

(c)  In  the  States  of  Wyoming,  Montana,  Washington,  Oregon,  California, 
Nevada,  Idaho,  Colorado,  Utah,  New  Mexico,  and  Arizona,  will  receive  $3  a  day 
for  the  time  of  actual  attendance  as  above  stated  and  for  the  time  necessarily 
occupied  in  going  to  and  returning  from  the  same,  and  15  cents  for  each  mile 
necessarily  traveled  over  any  stage  line  or  by  private  conveyance,  and  5  cents 
for  each  mile  by  any  railway  or  steamship.     (M.  C.  M.,  par.  1S5.) 

[Note. — 1.  Travel  must  be  estimated  by  the  shortest  usually  traveled  route — 
by  established  lines  of  railroad,  stage,  or  steamer — the  time  occupied  to  be 
determined  by  the  official  schedules,  reasonable  allowance  being  made  for  un- 
avoidable detention. 

2.  These  rates  apply  to  the  Philippine  Islands.     (See  Cir.  45,  A.  G.  O.,  1902.) 

3.  A  civilian  not  in  Government  employ,  when  furnished  transportation  on 
transport  or  other  Government  conveyance,  is  entitled  to  57.142  per  cent  of  5 
cents  per  mile  (equal  to  2.857  cents  per  mile).  (Comp.  Dec,  Aug.  20,  1902,  pub- 
lished in  Cir.  45,  A.  G.  O.,  1902.)] 

4.  Civilians  in  Government  employ. — Civilians  in  the  employ  of  the  Govern- 
ment when  traveling  upon  summons  as  witnesses  before  military  courts  are 
entitled  to  transportation  in  kind  from  their  place  of  residence  to  the  place 
w^here  the  court  is  in  session  and  return.  If  no  transportation  be  furnished, 
they  are  entitled  to  reimbursement  of  the  cost  of  travel  actually  performed  by 
the  shortest  usually  traveled  route,  including  transfers  to  and  from  railway 
stations  at  rates  not  exceeding  50  cents  for  each  transfer,  and  the  cost  of 
sleeping-car  accommodations  to  which  entitled  or  steamer  berth  when  an  extra 
charge  is  made  therefor.  They  are  also  entitled  to  reimbursement  of  the  actual 
cost  of  meals  and  rooms  at  a  rate  not  exceeding  $3  per  day  for  each  day  actually 
and  unavoidably  consumed  in  travel  or  in  attendance  upon  the  court  under  the 
order  or  summons.  No  allowance  will  be  made  to  them  when  attendance  upon 
court  does  not  require  them  to  leave  their  stations,     (M.  C.  M.,  par.  184.) 

91487°— 17 26 


APPENDIX  14. 
WARRANT  OF  ATTACHMENT. 


United  States  1 
vs. 


The  President  of  the  United  States  to ,  greeting : 

WHEUEAS ,  of ,  was  on  the day  of 191—,  at , 

duly  subpoenaed  to  appear  and  attend  at  ,  on  the day  of , 

191 — ,  at  -^— o'clock  —  m.,  before  a court-martial  duly  appointed  by 

paragraph  — ,  Special  Orders,  No.  — ,  dated  Headquarters , ,  191 — , 

to  testify  on  the  part  of  the  in  the  above-entitled  case;  and  whereas 

he  has  failed  to  appear  and  attend  before  said  court-martial  to  testify, 

as  by  said  subpoena  required,  and  whereas  he  is  a  necessary  and  material  wit- 
ness in  behalf  of  the in  the  above-entitled  case : 

NOW,  THEREFORE,  by  virtue  of  the  power  vested  in  me,  the  undersigned, 

as  judge  advocate  of  *  said court-martial,  by  article  22  of  section  1342  of 

the  Revised  Statutes  of  the  United  States  (39  Stat.,  650),  you  are  hereby  com- 
manded and  empowered  to  apprehend  and  attach  the  said  wherever  he 

may  be  found  within  the  United  States,  its  Territories,  or  possessions  and  forth- 
with bring  him  before  the  said  court-martial  at  to  testify  as 

required  by  said  subpoena. 


Judge  Advocate  of  said Court-Martial.^- 


Dated , 

,  191- 

Form  No.  272,  A.  G.  O. 


^  If  a  summary  court-martial,  line  out  the  words  "  judge  advocate  of." 
^  If  a  summary  court-martial,  line  out  and  substitute  the  necessary  words. 


387 


APPENDIX  15. 


Form  A. 


HABEAS  CORPUS  BY  UNITED  STATES  COURT  (WHERE  A  WITNESS 
IS  HELD  UNDER  A  WARRANT  OF  ATTACHMENT). 

RETURN    TO    WRIT. 

In  re (name  of  party  held). 

{Writ  of  habeas  corpus — Return  of  respondent.) 

To  the (court  or  judge)  : 

The  respondent,  Maj. ,  United  States  Infantry,  upon  whom  has 

been  served   a  writ   of  habeas   corpus  for  the  production  of  , 

respectfully  makes  return  and  states  that  he  holds  the  said by 

authority  of  the  United  States,  pursuant  to  a  warrant  of  attachment  issued 
under  section  3,  act  of  August  29,  1916,  twenty-second  Article  of  War,  by  a 
judge  advocate  of  a  lawfully  convened  general  (or  "  special  ")  court-martial  {or 
"by  a  summary  court-martial  ")  and  duly  directed  to  him,  the  said  respondent, 
for  execution ;  that  he  is  diligently  and  in  good  faith  engaged  in  executing  said 
warrant  of  attachment,  and  that  he  respectfully  submits  the  same  for  the 
inspection  of  the  court,  together  with  the  original  subpoena  and  proof  of 
service  of  the  same,  a  copy  ^  of  the  order  appointing  the  court-martial,  sworn  to 

as  such,  before  which  the  said has  been  subpoenaed  to  testify,  a 

copy  of  the  charges  and  specifications  in  the  case,  sworn  to  as  such,  in  which 

said  — is  a  witness,  and  an  affidavit  of showing  that 

said is  a  material  witness  in  the  case;  that  he  has  failed  to 

appear  and  has  offered  no  valid  excuse  for  such  failure. 

^  The  copy  of  the  order  appointing  the  court  and  of  the  charges  will  be  sworn 
to  by  the  judge  advocate  (or  summary  court-martial)  before  an  officer  author- 
ized to  administer  oaths. 

389 


390  MANUAL  FOR  COURTS- MARTIAL. 

In  obedience,   however,   to  the  said  writ  of  habeas  corpus  the  respondent 

herewith  produces  before  the  court  the  body  of  the  said ,  and 

for  the  reasons  set  forth  in  this  return  prays  this  honorable  court  to  dismiss 
the  said  writ. 


Major,  United  States  Infantry. 

Dated ,  , 


191—. 


Form  B. 


HABEAS  CORPUS  BY  STATE  COURT  (WHERE  WITNESS  IS  HELD 
UNDER  A  WARRANT  OF  ATTACHMENT). 

EETUEN   TO   WRIT. 

(Make  return  as  in  case  of  writ  by  a  United  States  court,  except  as  to  last 
paragraph,  for  which  substitute  as  follows:) 

And  said  respondent  further  makes  return  that  he  has  not  produced  the  body 

of  the  said ,  because  he  holds  him  by  authority  of  the  United 

States  as  above  set  forth,  and  that  this  coui*t  (or  "  your  honor,"  as  the  case 
may  be)  is  without  jurisdiction  in  the  premises,  and  he  respectfully  refers  to 
the  decisions  of  the  Supreme  Court  of  the  United  States  in  Ableman  v.  Booth, 
21  Howard,  506,  and  Tarble's  case,  13  Wallace,  397,  as  authority  for  his  action, 
and  prays  this  court  (or  "your  honor")  to  dismiss  the  writ. 


Major,  United  States  Infantry. 

Dated , , 


191- 


FORM  C. 


HABEAS  CORPUS  BY  UNITED  STATES  COURT  (WHERE  PRISONER 
IS  HELD  FOR  TRIAL  OR  UNDER  SENTENCE). 

RETURN  TO  WRIT. 

In  re (name  of  party  held). 

(Writ  of  habeas  corpus — Return  of  respondent.) 

To  the (court  or  judge)  : 

The  respondent,  Maj. ,  United  States  Infantry,  upon  whom  has 

been  served  a  writ  of  habeas  corpus  for  the  production  of ,  re- 
spectfully makes  return  and  states  that  he  holds  the  said by 

authority  of  the  United  States  as  a  soldier  in  the  United  States  Army  ( or  "  as 
a  general  prisoner  under  sentence  of  general  court-martial")  under  the  follow- 
ing circumstances: 

That  the  said was  duly  enlisted  as  a  soldier  in  the  service  of 

the  United  States  at , ,  on ,  191 — ,  for  a  term  of 

years.  (//  the  offense  is  fraudulent  enlistment,  this  recital  should  be  omitted.) 


APPENDICES.  391 

(Here  state  the  offense.  If  it  is  fraudulent  enlistment  hy  representing  himself 
to  he  of  the  required  age,  it  may  he  stated  as  follows:) 

That  on  the day  of ,  191—,  at the  said  , 

being  under  18  years  of  age,  did  fradulently  enlist  in  the  military  service 
of  the  United  States  for  the  term  of years,  by  falsely  representing  him- 
self to  be  over  18  years  of  age,  to  wit,  years  and  months; 

and  has,  since  said  enlistment,  received  pay  and  allowances  (or  either)  there- 
under. 

(//  the  offense  is  desertion,  it  may  he  stated  substantially  as  follows:) 

That  the  said deserted  said  service  at , ,  on 

,  191 — ,  and  remained  absent  in  desertion  until  he  was  apprehended  at 

— ,  ,  on ,  191 — ,  by ,  and  was  thereupon 

committed  to  the  custody  of  the  respondent  as  commanding  officer  of  the 
I)OSt  of . 

The  said has  been  placed  in  confinement  (or  "arrest,"  as  the 

case  may  he),  and  formal  charges  have  been  preferred  against  him  for  said 
ofCense,  a  copy  of  which,  duly  certified  and  verified,*  is  hereto  annexed;  and 
that  he  will  be  brought  to  trial  thereon  as  soon  as  practicable  before  a  court- 
martial,  to  be  convened  by  the  commanding  general  of  the  Department 

(or  "convened  by  Special  Orders,  No.  — ,  dated  Headquarters  Depart- 
ment, 191 — ,  a  copy  of  which,  duly  certified  and  verified,*  is  herein  annexed"). 

(If  the  party  held  is  a  general  prisoner,  the  folloiomg  paragraph  should  he 
substituted  for  the  preceding  paragraph:) 

That  the  said was  duly  arraigned  for  said  offense  before  a 

general  court-martial,  convened  by  Special  Orders,  No.  ,  dated  Head- 
quarters   Department,  191 — ,  was  convicted  thereof  by  said  court,  and  was 

sentenced  to  be  ,  which  sentence  was  duly  approved  on  the  day 

of ,  191 — ,  by  the  officer  ordering  the  court  (or  "  by  the  officer  command- 
ing said  Department  for  the  time  being")   as  required  by  the  

article  of  war.  A  copy  of  the  order  promulgating  said  sentence,  duly  certified 
and  vertified,*  is  hereto  attached. 

In  obedience,  however,  to  the  said  writ  of  habeas  corpus  the  respondent  here- 
with produces  before  the  court  the  body  of  the  said ,  respectfully 

refers  to  the  decisions  cited  in  the  annexed  brief  (if  the  case  does  not  involve 
a  minor  under  the  required  age  the  words  "  respectfully  refers  to  the  decisions 
cited  in  the  annexed  brief"  will  be  omitted),  and  for  the  reasons  set  forth  in 
this  return  prays  this  honorable  court  to  dismiss  the  said  writ. 


Major, United  States  Infantry. 

Dated , , 


191—. 


*  The  copy  of  the  charges  will  be  certified  by  the  adjutant  and  sworn  to  before 
an  officer  authorized  to  administer  oaths  for  military  administration,  in  the 
following  form: 

I  hereby  certify  that  the  foregoing  is  a  full  and  true  copy  of  the  original 

charges  preferred  against ,  and  that  the  same  are  in  the  usual 

form  of  military  charges  and  conform  to  the  rules  regulating  military  pro- 
cedure. 

'■ ,  Adjutant. 

Sworn  to  and  subscribed  before  me  this day  of ,  191 — . 


Judge  Advocate  of  Court-Martial 
(Or  "Summary  Court-Martial"). 

The  copy  of  the  order  convening  the  court  or  publishing  the  sentence  will  be 
certified  and  verified  in  a  similar  manner. 


392  MAXUAL   FOE   COUETS-MAETIAL. 

FOKM  D. 

HABEAS  CORPUS  BY  STATE  COURT  (WHERE  PRISONER  IS  HELD 
FOR  TRIAL  OR  UNDER  SENTENCE). 

EETUKX   TO  WRIT. 

(Make  return  as  in  case  a  writ  'by  a  United  States  court,  except  as  to  last 
pGragraph,  for  tchich  substitute  the  paragraph  set  out  in  Form  B,  Appendix  15.) 

IXSTRUCTIOXS  AS  TO  EETUE>:S  TO  WRITS  OF  HABEAS  CORPUS, 

The  following  instructions  in  regard  to  returns  under  A.  R.  998  and  999,  in 
the  cases  of  soldiers  who  have  committed  military  offenses  and  are  held  for 
trial  or  punishment  therefor,  and  of  general  prisoners,  are  for  the  information 
and  guidance  of  all  concerned: 

1.  The  return  under  A.  R.  999  will  be  made  in  accordance  with  Form  G 
(Appendix  15),  and  if  the  person  whose  release  is  sought  has  committed  the 
offense  of  fraudulent  enlistment  by  representing  himself  to  be  of  the  required 
age,  will  refer,  as  in  last  paragraph  of  that  form,  to  the  brief  of  authorities 
which  follows  these  instructions,  and  a  copy  of  that  brief  will  be  annexed  to  the 
return.  Should  the  court  order  the  discharge  of  the  party,  the  officer  making 
the  return,  or  counsel,  should  note  an  appeal  pending  instructions  from  the  War 
Department,  and  he  will  report  to  The  Adjutant  General  of  the  A^my  the  action 
taken  by  the  court  and  forward  a  copy  of  the  opinion  of  the  court  as  soon  as 
it  can  be  obtained. 

2.  The  return  under  A.  R.  998  will  be  made  in  accordance  with  Form  D 
(Appendix  15),  but  a  copy  of  the  brief  of  authorities  is  not  intended  to  be 

attached  to  the  returns  to  icrits  of  habeas  corpus  issuing  from  a  State  court. 


BRIEF  TO  BE  FILED  WITH  A  RETURN  TO  A  WRIT  OF  HABEAS 
CORPUS  ISSUED  BY  A  UNITED  STATES  COURT  IN  THE  CASE  OF 
A  SOLDIER  WHOSE  DISCHARGE  IS  SOUGHT  ON  THE  GROUND 
OF  MINORITY. 


The  right  to  avoid  the  contract  of  enlistment  of  a  soldier  on  the  ground  of 
minority  will  be  considered  under  the  following  heads :  I.  Under  the  commoa 
law ;  II.  Under  the  statutes ;  III.  Where  the  minor  is  held  for  punishment. 

I. 

UNDER  THE  COAtMON  LAW. 

The  enlistment  of  a  minor  is  not  avoidahle  hy  the  minor  nor  'by  his  parent  or 
guardian  at  common  law,  hut  is  only  avoidahle  ivhere  the  right  to  avoid  it  is 
conferred  hy  statute. 

This  proposition  is  clearly  established  by  the  decision  of  the  Supreme  Court 
(In  re  Morrissey,  137  U.  S.,  157,  159),  where  the  court  said; 

An  enlistment  is  not  a  contract  only,  but  effects  a  change  of  status. 
(Grijnley's  case,  137  U.  S.,  147.)  It  is  not,  therefore,  like  an  ordinary 
contract,  voidable  by  the  infant.  At  common  law  an  enlistment  was  not 
voidable  either  by  the  infant  or  by  his  parents  or  guardians. 

The  court  cites,  in  support  of  these  statements.  Rex  v.  Bother  field  Greys  (1 
Barn.  &  Cress.,  345,  350 ;  8  Eng.  C.  L.,  149)  ;  Rex  v.  Lytchet  Matraverse  (7  Barn. 
&  Cress.,  226,  231;  14  Eng.  C.  L.,  107)  ;  Commonwealth  v.  GamUe  (11  Serg. 
&  Rawle  (Pa.  R.),  93)  ;  U.  S.  v.  Blakeney  (3  Grattan,  387,  405). 

In  Rex  v.  Rothcrfield  Greys,  supra,  it  was  said  by  Best,  J. : 

By  the  general  policy  of  the  law  of  England  the  parental  authority 
continues  until  the  child  attains  the  age  of  twenty -one  years;  but  the 
same  policy  also  requires  that  a  minor  shall  be  at  liberty  to  contract  an 
engagement  to  serve  the  State.  When  such  an  engagement  is  contracted 
it  becomes  inconsistent  with  the  duty  which  he  owes  to  the  public  that 
the  parental  authority  should  continue.  The  parental  authority,  however, 
is  suspended,  but  not  destroyed.  When  the  reason  for  its  suspension 
ceases  the  parental  authority  returns. 

In  Rex  V.  Lytchet  Matraverse,  supra,  Bayley,  J.,  after  quoting  these  views 
of  Best,  J.,  says: 

Lawrence,  J.,  in  Rex  v.  Roach  (6  T.  R.,  254),  seems  to  take  the  same 
viev/  of  the  subject  and  to  consider  the  authority  of  the  State  paramount 
to  that  of  the  parent  so  long  as  the  minor  continues  in  the  public  service, 
but  as  soon  as  he  leaves  it  then  the  parental  authority  is  restored. 

It  is  clear  from  these  authorities  and  others  which  could  be  cited  that  at 
common  law  the  enlistment  of  a  minor  of  sufficient  capacity  to  hear  arms  was 
valid  regardless  of  age.  The  right  of  the  State  to  the  services  of  such  minors 
is  forcefully  laid  down  in  Lanahan  v.  Birge  (30  Conn.,  438).  See  also  Cooley's 
Constitutional  Law,  page  99,  where  on  the  authority  of  Ex  parte  Broivn  (5 
Cranch,  C.  C,  554),  and  United  States  v.  Bainhridge  (1  Mason,  71),  it  is  said: 
Minors  may  be  enlisted  without  the  consent  of  their  parents  or 
guardians  tvhen  the  law  fails  to  require  such  consent. 

393 


394  MANUAL   FOE   COUKTS-MARTIAL. 

II. 
UNDER  THE  STATUTES. 

The  pertinent  statutes  are  the  following: 

Sec.  1116,  R.  S.  Recruits  enlisting  in  the  Army  must  be  effective  and 
able-bodied  men,  and  between  the  ages  of  sixteen  and  thirty-five  years  at 
the  time  of  their  enlistment.  This  limitation  as  to  age  shall  not  apply  to 
soldiers  reenlisted. 

This  section  was  modified  by  the  act  of  March  2,  1899  (30  Stat.,  978),  which 
provides : 

That  the  limits  of  age  for  original  enlistments  in  the  Army  shall  be 
eighteen  and  thirty-five  years. 

Sec.  1117,  R.  S.  No  person  under  the  age  of  twenty-one  years  shall  be 
enlisted  or  mustered  into  the  military  service  of  the  United  States  without 
the  written  consent  of  his  parents  or  guardians:  Provided,  That  such 
minor  has  such  parents  or  guardians  entitled  to  his  custody  and  control. 

This  section  is  replaced  by  the  provision  of  section  27,  National-Defense  Act  of 
June  3,  1916  (39  Stat.  186),  which  reenacts  it  in  the  same  words,  substituting  the 
age  of  18  years  for  the  age  of  21. 

Sec.  1118,  R.  S.  No  minor  under  the  age  of  sixteen  years,  no  insane  or 
intoxicated  person,  no  deserter  from  the  military  service  of  the  United 
States,  and  no  person  who  has  been  convicted  of  a  felony  shall  be  enlisted 
or  mustered  into  the  military  service. 

1.  The  statutes  confer  no  right  upom  the  minor  to  avoid  his  enlistment,  cer- 
tainly not  if  he  be  16  years  of  age  or  over.  No  case  has  been  found  directly  in 
point  holding  that  a  minor  under  16  years  of  age,  if  of  sufficient  capacity  to 
bear  arms,  may  avoid  his  enlistment. 

Section  1116,  R.  S.,  as  amended,  prescribing  the  age  limits  of  original  enlist- 
ment, was  made  for  the  benefit  of  the  Government  and  not  the  minor.  (In  re 
Morrissey,  137  U.  S.,  157 ;  In  re  Grimley,  137  U.  S.,  147 ;  in  re  Wall,  8  Fed.  Rep., 
85 ;  In  re  Davison,  21  Fed.  Rep.,  618 ;  In  re  Zimmerman,  30  Fed.  Rep.,  176 ;  In  re 
Spencer,  40  Fed.  Rep.,  149 ;  In  re  Lawler,  40  Fed.  Rep.,  233 ;  Solomon  v.  Daven- 
port, 87  Fed.  Rep.,  318;  Wagner  v.  Gibbon,  24  Fed.  Rep.,  135.) 

Section  1117,  R.  S.,  as  amended,  while  recognizing  the  right  of  the  parent 
to  the  services  of  the  minor,  confers  no  right  in  the  minor  to  avoid  his  enlist- 
ment.    See  the  cases  cited  above. 

In  the  Morrissey  case  the  Supreme  Court  of  the  United  States  said  that  the 
provision  of  section  1116,  R.  S., 

is  for  the  benefit  of  the  parent  or  guardian  *  *  *  ly^^  ^  gives  no 
privilege  to  the  minor  *  *  *  an  enlistment  is  not  a  contract  only,  but 
effects  a  change  of  status.  It  is  not,  therefore,  like  an  ordinary  contract, 
voidable  by  the  infant  *  *  *.  The  contract  of  enlistment  was  good, 
so  far  as  the  petitioner  is  concerned.  He  was  not  only  de  facto  but 
de  jure  a  soldier — amenable  to  military  jurisdiction. 

Whether  the  designation  of  the  age  limit  of  16  years  in  section  1118,  R.  S., 
is  such  as  to  make  the  enlistment  of  the  minor  under  16  years  of  age  void  or 
voidable  by  the  minor  has  not  been  decided.  On  principle,  the  minor,  if  of 
sufl^cient  capacity  to  render  military  service,  should  not  be  permitted  to  avoid 
his  enlistment  obtained  through  his  fraudulent  statements  as  to  his  age.  How- 
ever this  may  be,  if  the  minor  continued  to  serve  and  receive  pay  after  passing 
that  age  he — 

acquires  the  status  of  a  soldier  like  one  who  was  enlisted  when  over 
16  years  without  the  consent  of  his  parents,  and  a  court-martial  has 
jurisdiction  to  try  and  sentence  him  to  punishment  for  desertion,  from 
which  sentence  he  can  not  be  discharged  on  habeas  corpus  on  petition 
of  himself  or  his  parents.     (Eae  parte  Hubbard,  182  Fed.  Rep.,  76.) 


APPENDICES.  395 

2.  The  statutes  requiring  the  consent  of  the  parent  or  guardian  of  a  minor 
to  his  enlistment  {seetiqn  1117,  R.  S.,  amended  by  section  27,  act  of  June  3, 
1916)  impliedly  confer  upon  the  parent  or  guardian  the  right  to  avoid  an  en- 
listment entered  into  by  a  minor  under  the  prescribed  age  without  the  required 
consent,  where  the  minor  is  not  held  for  trial  or  punishment  for  a  military 
offense. 

In  support  of  this  proposition  see  the  cases  cited  under  II,  proposition  1. 

3.  A  parent  or  guardian  ivith  knowledge  of  the  enlistment  of  a  minor  under 
the  prescribed  age  and  acquiescing  therein  for  a  considerable  period,  may  be 
held  to  be  estopped  from  asserting  the  right  to  avoid  the  enlistment. 

In  support  of  this  proposition  see  Ex  parte  Dunakin  (202  Fed.  Rep.,  290), 
where  it  was  held,  quoting  from  the  syllabi: 

Where  a  minor  enlisted  without  the  consent  of  his  parent  or  guardian, 
and  his  mother,  who  was  his  surviving  parent,  on  learning  of  his  en- 
listment shortly  thereafter,  did  nothing  to  repudiate  the  same  or  to 
secure  his  release,  and  testified  that  she  would  have  been  reconciled  to 
it,  had  he  remained  in  the  Army  and  not  deserted,  but  that  after  his 
desertion  she  wanted  to  keep  him  out  of  the  Army,  her  acts  constituted 
an  implied  consent  to  his  enlistment. 

4.  A  minor  fraudulently  enlisting  and  remaining  in  the  service  after  attain- 
ing the  legal  age  of  enlistment,  or  the  age  beyond  which  parental  consent  is 
not  required,  thereby  validates  his  enlistment. 

In  support  of  this  proposition  see  the  case  of  Ex  parte  Hubbard  (182  Fed. 
Rep.,  76),  where  the  court  held,  quoting  the  syllabus: 

A  minor  enlisted  in  the  Army  when  under  the  age  of  10,  who  has 
continued  to  serve  and  receive  pay  after  pa&sing  that  age,  acquires  the 
status  of  a  soldier  like  one  who  was  enlisted  when  over  16  without  the 
consent  of  his  parents,  and  a  court-martial  has  jurisdiction  to  try  and 
sentence  him  to  punishment  for  desertion  from  which  sentence  he  can  not 
be  discharged  on  habeas  corpus  on  petition  of  himself  or  his  parents. 

III. 

WHERE  THE  MINOR  IS  HELD  FOR  PUNISHMENT. 

Neither  the  minor  nor  his  parent  nor  guardian  may  avoid  the  enlistment 
where  the  soldier  is  held  for  trial  or  under  sentence  for  a  military  offense. 

In  support  of  this  proposition  see  the  cases  cited  above  under  II,  proposi- 
tion 1,  and  also  the  following:  In  re  Kaufman  (41  Fed.  Rep.,  876)  ;  In  re 
Dohrendorf  (40  Fed.  Rep.,  148)  ;  In  re  Cosenow  (37  Fed.  Rep.,  668)  ;  In  re 
Dowd  (90  Fed.  Rep.,  718)  ;  In  re  Miller  (114  Fed.  Rep.,  838)  ;  United  States 
V.  Reaves  (126  Fed.  Rep.,  127)  ;  In  re  Lessard  (134  Fed.  Rep.,  305)  ;  Ex  parte 
Anderson  (16  Iowa,  595)  ;  McConologue's  Case  (107  Mass.,  154,  170)  ;  In  re  Car- 
ver (142  Fed.  Rep.,  623)  ;  In  re  Scott  (144  Fed.  Rep.,, 79)  ;  Dillingham  v.  Booker 
(163  Fed.  Rep.,  696)  ;  Ese  parte  Rock  (171  Fed.  Rep.,  240)  ;  Ex  parte  Hubbard 
(182  Fed.  Rep.,  76)  ;  Ex  parte  Lewkowitz  (163  Fed.  Rep.,  646)  ;  United  States 
V.  WilUford   (220  Fed.  Rep.,  291).  . 

The  reasons  given  for  these  decisions  are  that  the  enlistment  of  a  minor 
in  the  Army  without  the  consent  of  his  parent  or  guardian  required  by  section 
1117,  R.  S.,  "  is  not  void,  but  voidable  only  " ;  that  the  soldier  being  not  only 
de  facto  but  de  jure  a  soldier,  he  is  subject  to  the  Articles  of  War  and  may 
commit  a  military  offense;  and  that  if  held  for  trial  or  punishment  for  a 
military  offense,  the  interests  of  the  public  in  the  administration  of  justice 
are  paramount  to  the  right  of  the  parent  or  guardian,  and  require  that  the 
soldier  abide  the  consequences  of  his  offense  before  the  question  of  his  dis- 
charge will  be  considered  by  the  court.    In  the  Miller  Case  (114  Fed.  Rep., 


396  MAXUAL   FOR   COUETS-MAETIAL. 

842),  the  court  supported  its  holding  by  the  analogy  of  a  minor  held  for  pun- 
ishment for  a  civil  offense,  saying:  , 

The  common  law,  unaided  by  statute,  fully  recognizes  the  parents' 
right. to  the  custody  and  services  of  their  minor  child;  but  it  has  never 
been  held  that  they  could,  by  the  writ  of  habeas  corpus  or  otherwise, 
obtain  his  custody  and  his  immunity  when  he  was  held  by  an  officer  of 
a  civil  court  of  competent  jurisdiction  to  answer  a  charge  of  crime.  His 
enlistment  having  made  the  prisoner  a  soldier  notwithstanding  his  mi- 
nority, he  is  amenable  to  the  military  lata  just  as  the  citizen  who  is  a 
minor  is  amenahle  to  the  civil  law.  The  parents  can  not  prevent  the 
law's  enforcement  in  either  case    *    *    *. 

The  views  here  cited  were  approved  in  the  Reaves  case  (126  Fed.  Rep.,  127), 
where  upon  full  consideration  of  the  authorities  the  Circuit  Court  of  Appeals 
remanded  Reaves,  a  minor,  who  had  deserted  from  the  Navy,  to  custody  of  the 
naval  authorities  as  represented  by  the  chief  of  police  who  had  apprehended 
him.     In  the  Carver  case  (142  Fed.  Rep.,  623),  the  syllabus  is  as  follows: 

A  minor  under  the  age  of  18  years  who  unlawfully  enlisted  in  the 
Army  without  the  consent  of  his  father  can  not  be  discharged  from  the 
service  on  a  writ  of  habeas  corpus  sued  out  by  his  father  so' long  as  he 
is  under  arrest  for  desertion  nor  until  he  has  been  discharged  from  such 
custody  or  has  served  the  sentence  imposed  on  him  by  the  military 
tribunal. 

In  the  Leivkowitz  case  (163  Fed.  Rep.,  646),  the  syllabus  reads: 

A  minor  who  by  misrepresenting  his  age  has  fraudulently  enlisted  in 
the  Army  without  the  consent  of  his  parents  and  thereby  subjected 
himself  to  punishment  under  military  law  will  not  be  relieved  from  such 
punishment  by  the  civil  courts  by  discharging  him  on  a  writ  of  habeas 
corpus  on  the  application  of  his  parents,  even  though  the  military  prose- 
cution is  not  instituted  until  after  the  writ  was  issued. 

This  was  followed  by  the  unanimous  opinion  in  the  Circuit  Court  of  Appeals 
in  the  Love  case  (United  States  v.  AVilliford,  220  Fed.  Rep.,  291),  in  which 
the  court  expressly  approved  the  views  stated  in  the  Lewkowits  case,  quoting 
section  761,  R.  S.,  relating  to  procedure  under  writs  of  habens  corpus,  which 
reads  as  follows: 

The  court,  or  justice,  or  judge  shall  proceed  in  a  summary  way  to 
determine  the  facts  of  the  case  by  hearing  the  testimony  and  arguments 
and  thereupon  to  dispose  of  the  party  as  law  and  justice  require. 

The  court  added: 

Law  and  justice  do  not,  in  our  opinion,  require  Love  to  be  withdrawn 
from  the  military  authorities  and  relieved  of  liability  for  his  offense  in 
favor  of  his  mother's  right  to  his  custody. 

By  act  of  July  27,  1892  (27  Stat.,  278),  "fraudulent  enlistment  and  the  re- 
ceipt of  pay  or  allowance  thereunder  "  was  made  a  military  offense,  punishable 
under  the  sixty-second  article  of  war.  The  offense  is  now  defined  in  article  54, 
revised  Articles  of  War,  approved  August  29,  1916  (39  Stat.,  659),  which  provides 
that  the  offense  "shall  be  punished  as  a  court-martial  may  direct."  A  minor 
who  procures  his  enlistment  by  wilful  misrepresentation  or  concealment  as  to 
his  qualifications  for  enlistment  commits  this  offense,  and  the  statute  authorizes 
his  punishment  therefor.  In  general,  it  may  be  stated  that  where  a  minor  has 
committed  a  military  offense  the  interests  of  the  public  in  the  administration  of 
justice  are  paramount  to  the  right  of  the  parent  and  require  that  the  soldier 
shall  abide  the  consequences  of  his  offense  before  the  right  to  his  discharge  be 
passed  upon.  The  soldier  should  not  be  allowed  to  escape  punishment  for  his 
offense,  even  though  his  parents  assert  their  right  to  his  services.  A  minor  in 
civil  life  is  liable  to  punishment  for  a  crime  or  misdemeanor,  even  though  his 
confinement  may  interfere  with  the  rights  of  his  parents;  and  the  above  au- 
thorities clearly  apply  the  same  rule  to  a  minor  held  for  trial  or  punishment 
/or  a  military  offense. 


APPENDIX  16. 


^  [Sheet  1.] 

WAR   DEPARTMENT  WAR  DEPARTMENT 

Form  No.  338. 
Approved  by  the  Comptroller  of  the        quartermaster  corps 
Treasury  April  29, 1914 

PUBLIC  VOUCHER 


Voucher  No 

General  Account. 
Detail  Account.. 


COMPENSATION,  CIVILIAN  WITNESS 

APPROPRIATION  I  PAY,  ETC. ,  OF  THE  ARMY,  191     Symbol. 

The  United  States  to ,  Dr. 

Address: 


Object 
Symbol 

Amount 

U.S. 
Notations 

For  mileage  as  a  witness  from to and 

return  being              miles  at              cents  per  mile 

For  allowance  as  a  ^vitness  while  in  attendance- 

Giving  deposition  at for  use  before  a  court-martial 

from 191  ,to ,191  ,asper 

oprtifipatp  horoon                flnvs   at  Si                 "nGr  dav              '.. 

Total      

I  CERTIFY  that,  as  stated  above,  I  attended  as  a  witness  for  the  period  named,  and  as  such 
the  tra\  el  between  the  places  named  was  required. 

(Payee) 

(Do  not  sign  in  duplicate) 

Examined 
by 

(Account  to  be  completely  filled  in  before  certification,  and  no  alteration  or  erasure  to  be  made  thereafter) 

I  CERTIFY  that -. . ,  a  civilian  not  in  Government  employ, 

has  been  in  attendance  from ,  191     ,  to ,  191     , 

.     1     •       fas  a  material  witness  before  a court-martial  duly  convened  at  this  place,  "1 

inclusive,  jgiyi^g  deposition  for  use  of  a  court-martial  convened  under  attached  orders,  / 

and  that  he  was  duly  summoned  thereto  from ,  and  was  not  furnished 

transportation  by  the  Government  for  any  portion  of  the  journey. 

Place, 

Date, ,191  

(Title) 


Paid  by  check  No ,  dated ,  191     ,  of 

favor  of  payee  named  above  f or  $ 


397 


398 


MANUAL   FOR   COURTS-MARTIAL. 


OR 


Received ,191    ,  of ,  in  cash,  the  sum  of dollara 

and cents,  in  full  payment  of  the  above  account. 


(This  form  to  be  used  only  for  payment  of  civilian  witnesses  not  in  Government  employ) 


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[Sheet  2.1 

WAR  DEPARTMENT  WAR  DEPARTMENT  Voucher  No 

Form  No.  338. 

Approved  by  the  Comptroller  of  the      quartermaster  CORPS  General  Account 
Treasury  April  29, 1914 

PUBLIC  VOUCHER  Detail  Account.. 

COMPENSATION,  CIVIUAN  WITNESS 

appropriation:  pay,  etc.,  of  the  army,  191 

Symbol 

The  United  States  To ,  Dr. 

address: 


Object 
Symbol 

Amount 

U.S. 
Notations 

For  mileage  as  a  witness  from to and 

retmn,  being miles,  at cents  per  mile 

For  allowance  as  a  witness  while  in  attendance— 

On  a  court-martial  at 

Giving  deposition  at for  use  before  a  court-martial 

from ,  191  ,  to ,  191,  as  per 

certificate  hereon, days,  at$ per  day 

Total 

EXAMINED 
BY 

APPENDICES. 


399 


MEMORANDUM  VOUCHER 

(To  be  filled  in  and  retained  by  paying  officer) 


Voucher  certified  by  . 
Voucher  approved  by- 


Paid  by  check  No ,  dated  . . . 

in  favor  of  payee  named  above  for  $. 


,191     ,  of on 


Paid  in  cash by 

(Date) 


dollars  and cents. 


Funds  derived  from  check  No on 


(This  form  to  be  used  only  for  payment  of  civilian  witnesses  not  in  Government  employ) 


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APPENDIX  17. 


WAR  DEPARTMENT 

Form  No  350  a. 

Approved  by  the  Comptroller  of  the 

Treasury  April  29, 1914. 


[Sheet  1.] 
WAR  DEPARTMENT 


(Bureau  or  Oflace.) 
PUBLIC  VOUCHER 

REIMBURSEMENT   OF   TRAVELING    EXPENSES 

Appropriation Symbol $. 

Appropriation Symbol $. 

Appropriation Symbol $. 

The  United  States,  to ,  Dr. 

Address:  


Voucher  No 

General  Account. 
Detail  Account.. 


For  reimbursement  of  traveling  expenses  incurred  in  the  discharge  of 

official  duty  from ,191    ,  to ,  191    , 

under  written  authorization  from  the : , 

dated ,191    ,  a  copy  of  which  is as  per  itemized 

schedule  below 


Amount  claimed,  $ 


U.S. 
notations 


Object 
symbol 


Date 
191 


Schedule  of  expenditures 


Sub- 
voucher 
No. 


Amount 


U.S. 
notations 


MEMORANDUM  OF  TRAVEL  PERFORMED  UPON  TRANSPORTATION  REQUESTS 


Examined 

by 


Date  of 
travel 


No.  of 
transpor- 
tation 
request 


From- 


To— 


Via  R.  R. 


Amount 


U.S. 
notations 


I  DO  solemnly  * that  the  above  account  and  schedule  are  correct  in  all 

respects;  that  the  distances  as  charged  have  been  actually  and  necessarily  traveled 
by  me  on  the  dates  therein  specified;  that  the  amounts  as  charged  have  been  actually 
paid  by  me  for  traveling  expenses;  that  no  part  of  the  account  has  been  paid  by  the 
United  States,  but  the  full  amount  is  due;  that  all  expenditures  included  in  said 

401 


91487°— 17- 


-27 


402 


MAlsTUAL   FOR  COURTS-MARTIAL. 


account  other  than  my  own  personal  traveling  expenses  were  made  under  urgent  and 
unforseen  public  necessity;  and  that  it  was  not,  for  the  reasons  stated  herein,  feasible 
to  have  such  expenditures  paid  directly  by  a  disbursing  officer. 

Payee:  

(Do  not  sign  in  duplicate) 

Subscribed  and  f to  beforeme  at ,  this.. day 

of ,  A.  D.  191 

♦Swear  or  afltan.  f  Sworn  to  or  aflarmed. 

I  CERTIFY  that  the  above  account  is  correct,  that  the  travel  was  performed,  and  that 
it  was  necessary  for  the  public  service. 


Approved  for  $. 
Date:  


Title: 
Title: 


Paid  by  check  No ,  dated ,  191    ,  of, 

of  payee  named  above,  for  $ 


.on ,  in  favor 


Received of 

(Date) 

cents  in  full  payment  of  the  above  account. 


OB 

in  CASH,  the  sum  of. 


.dollars  and. 


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APPENDICES. 


4oa 


WAR  DEPARTMENT 

Form  No.  350  a. 

Approved  by  the  Comptroller  of  the 

Treasury  April  29, 1914. 


[Sheet  2.] 
WAR  DEPARTMENT 

(Bureau  or  dffice!) 
PUBLIC  VOUCHER. 


Voucher  No 

General  Account. 
Detail  Account . . 


REIMBURSEMENT   OF  TRAVELING   EXPENSES 


Appropriation Symbol 

Appropriation Symbol 

Appropriation Symbol 


The  United  States,  To ,  Dr. 

Address:  


For  reimbursement  op  traveling  expenses  incurred  in  the  discharge  of  offi- 
cial duty  from ,191    ,  to ,191    ,  under  written  authoriza- 
tion from  the ,  dated ,191    , 

a  copy  of  which  is as  ner  itemized  schftdulp.  hfilow 

U.S. 
notations 

'■ 

Amount  claimed,  $ 

Object 
symbol 

Date 
191 

Schedule  of  expenditures 

Sub- 
voucher 
No. 

Amount 

U.S. 
notations 

MEMORANDUM  OF  TRAVEL  PERFORMED  UPON  TRANSPORTATION  REQUESTS 

Examined 
by 

Date  of 
travel 

No.  of 
transpor- 
tation 
request 

From— 

To- 

Via  R.  R. 

Amount. 

U.S. 
notations 

MEMORANDUM  VOUCHER. 

(To  be  filled  in  and  retained  by  paying  officer) 


Voucher  certified  by  . 
Voucher  approved  by 


Paid  by  check  No ,  dated ,191     ,  of 

favor  of  payee  named  above,  for  $ 


on 


m 


Paid  in  cash by , 

(Date) 

Funds  derived  from  check  No on 


dollars  and cents. 


404 


MANUAL   FOR   COUETS-MARTIAL. 


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APPENDIX  18. 


WAR  DEPARTMENT 

Form  No.  339. 

Approved  by  tho  Comptroller  of  tho 

Treasury  April  29, 1914 


[Sheet  1.] 
WAR  DEPARTMENT 

QUARTERMASTER    CORPS 

PUBLIC  VOUCHER 

PERSONAL  SERVICES— REPORTER 

appropriation:  pay,  etc.,  of  the  army,  191     Symbol 

The  United  States  to ,  Dr. 

address  : 


Voucher  No 

General  Account. 
Detail  Account.. 


(^3JECT 

Symbol 

Date 
191 

Amount 

U.S. 
Notations 

For  services  as  a  reporter  before  a convened 

at 1 ,  pursuant  to  Special  Orders 

No ,  Department ,191    : 

Cases  of 

hoiU'S  before  tho ,  at  $1  per  hour. . 

(Court,  board,  or  commission.) 
. .  .  words,  at  15  cents  per  100  words                 

words,  at  10  cents  per  100  words 

words,  carbon  copies,  at  2  cents  per  100  words. . 

days  in  going  to,  in  attendance  on,  and  return- 

(Court,  board,  or  commission.) 

in  going  to  and  returning  from  the  cotirt,  being miles, 

at            cents  a  mile                    .           .     .        

Total      

I  CERTIFY  that  as  i 
places  named  was  re 

ibove  stated  I  rendered  the  services  named,  and  the  travel  between  the 
quired. 

(Payee) 

EXAMINED 
BY 

(Do  not  sign  in  duplicate) 

(Accotmt  to  be  completely  filled  in  before  certification,  and  no  alteration  or  erasure  to  be  made  thereafter.) 

I  CERTIFY  that was  employed  by  me  as  a  reporter  for  a 

under  the  annexed  authority,  and  that  the  account  for  his  services 

as  stated  above  is  correct. 


(Title). 


Paid  by  check  No ,  dated ,  191     ,  of 

favor  of  payee  named  above,  for  | 


OR 

Beceived ,  191     ,  of ,  in  cash,  the  sum  of dollars 

and cents,  in  full  payment  of  the  above  account. 


405 


406 


MANUAL  FOR  COURTS-MARTIAL. 


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WAR  D  E  PAR  TME  NT  [Sheet  2]  Voucher  No 

Form  No.  339. 
Approved  by  the  Comptroller  of  the         WAR  DEPARTMENT  General  A  ccount. 

Treasury  April  29, 1914 

QUARTERMASTER  CORPS  Detail  Account. . 

PUBLIC  VOUCHER 

PERSONAL  SERVICES— REPORTER  Symhol 

appropriation:  pay,  etc.,  of  the  army,  191 

The  United  States  to ,  Dr. 

ADDRESS : 


Object 
Symbol 

Date 
191 

Amount 

U.  S. 
Notations 

For  services  as  a  reporter  before  a convened 

at , pursuant  to  Special  Orders 

No ,  Department ,191    : 

hours  before  the ,  at  11  per  hour.. 

(Court,  board,  or  commission.) 
words  at  15  cents  per  100  words 

days  in  going  to,  in  attendance  on,  and  returning 

(Court,  board,  or  commission.) 
To  mileage  for  travel  between and 

in  going  to  and  returning  from  the  court,  being 

miles  at            cents  a  mile 

Total 

MEMORANDUM  VOUCHER 

(To  be  filled  in  and  retained  by  paying  officer.) 

EXAMINED 
BY 

Voucher  certified  by. . 
Vouclier  approved  by. 


APPENDICES.  407 

Paid  by  check  No ,  dated ,191    ,  of on ,  in  favor  of 

payee  named  above,  for  $ 


Paid  in  cash by 

(Date) 

Funds  derived  from  check  No on 


dollars  and  cents. 


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APPENDIX  19. 
REPORT  OF  INQUEST. 


191— 


From : summary  court-martial. 

To :  Commanding  officer. 

Subject:  Report  of  inquest  over  body  of ,  deceased. 

1.  Pursuant  to  your  letter   {or,  your  oral  instructions)  of  ,  I  viewed 

on  the day  of ,  the  body  of ,  found  dead  at  this  post,  and 

have  examined  the  following  witnesses,  whose  testimony  is  appended  to  this 
report : 


2.  From  a  view  of  the  body  and  from  the  evidence  before  me  I  find  that 

at  or  about m.,  on  the day  of (or,  on  or  about  the '■ — 

day  of  ),  ,  a  of  ,  Regiment  of  (or, 

a  civilian),  died  a  natural  death  (or,  committed  suicide;  or,  was  accidentally 

killed  in  manner  and  circumstances  as  follows;  or,  was  killed  by  or 

by  some  person  or  persons  unknown,  in  manner  and  circumstances  as  follows: 
(or  otherwise,  as  the  case  may  be). 


409 


INDEX. 

[References  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "  p  "  pre- 
ceding the  number.] 


Absence  without  leave:  Par. 

Defined  and  discussed 412 

Accomplices : 

See  Evidence,  testimonial. 

Accused: 

Not  to  be  tried  in  irons 88 

Refusal  to  plead - 155 

Evidence  regarding  character  of 205 

Insanity ^ 219 

Copy  of  record  for 117 

Effect  of  plea  of  guilty  to  be  explained 154,  857 

Accuser.    (See  Witness  for  prosecution.) 

As  appointing  authority 17,  22 

As  member  of  court 129 

Admissious: 

Against  interest 226 

In  connection  with  closing  statement 292 

Afladavits : 

Not  admissible  as  evidence,  exception 269 

Appointing  authority: 

Power  of,  how  limited 20 

General  court-martial 14 

Special  court-martial ■ 21 

Summary  court-martial ^ 25 

Action  on  proceedings 369-377 

Arguments : 

In  closing 293 

Arraignment : 

When  made,  procedure 143, 144 

Arrest : 

When  ordered 46 

Who  may  order 47 

How  executed 48 

Status  while  in 49,53 

Of  deserters  by  civil  authorities 58 

Of  medical  officer 51 

Discussed 420 

Arson: 

Defined  and  denounced 443 

Articles  of  War: 

When  effective 486 

Certain  ones  to  be  read  and  explained 110 

Transitory   provisions 487 

Punitive,  discussed : 405-446 

411 


412  INDEX. 

[References  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "p"  pre- 
ceding the  number.] 

Assaulting:  Par. 

Superior  officer 415 

Noncommissioned  officer 416 

Persons  suppressing  quarrels,  etc 419 

Assaults : 

Defined  and  denounced 443 

Assistant  judge  advocate.      (See  Judge  advocate.) 

Appointment  and  duties 106, 107 

Attachment.    (See  Warrant  of  attachment.) 

Attorney  and  client: 

See  Evidence,  testimonial. 

Brigade  commanders: 

Power  over  summary  courts-martial 29 

Burden  of  proof: 

In  proving  guilt 288 

In  collateral  issues ^ 288 

Burglary : 

Defined  and  denounced 443 

Cadets: 

Subject  to  military  law 4 

Courts-martial  for  trial  of 16 

Not  triable  by  special  court-martial 41 

Not  triable  by  summary  court-martial 43 

Camp  followers: 

Subject  to  military  law 4 

Capital  crimes: 

Enumeration 41 

Captured  property: 

Offenses  concerning 429,  430 

Challenges : 

Grounds  for 121 

Of  new  member 122 

By  judge  advocate 124 

Procedure  upon 125 

Chaplains : 

Not  available  for  court-martial  duty 6 

Character: 

Of  accused,  evidence  regarding 205 

Charges: 

Who  may  initiate 62 

Who  may  prefer 63 

Accumulation  of 65 

Joint 69, 301 

Rules  to  be  observed  in  pleading 74 

Submission   of 75 

Investigation    of 76 

Forms    for pp.  335-349 

Charge  sheet: 

Form    , p.  333 


INDEX.  413 

[References  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "  p  "  pre- 
ceding the  number.] 

Civil  suits  ag-ainst  officers  and  soldiers:  Par. 

When  transferable  to  Federal  court 484 

Clemency: 

Recommendation  to 332,  357 

Closed  sessions: 

Judge  advocate  to  withdraw 91, 101 

Clothing: 

Selling,  etc 349 

Commanding  officer: 

Disciplinary  power  of 333-336 

Commutation  of  sentences: 

Can  be  exercised  only  bj^  President 402 

Competency: 

Of  witness 209 

Complaints: 

Of  wrongs  committed  by  commanding  officer 485 

Conduct: 

Unbecoming  an  officer  and  gentleman 445 

To  the  prejudice  of  good  order  and  military  discipline 446 

Confessions.     (See  Evidence,  testimonial.) 

Unsupported,  not  to  be  basis  for  charges 70 

Confinement.    (See  Penitentiary,  Disciplinary  Barracks.) 

Place  of,  to  be  designated  by  appointing  authority 394 

Penitentiary,  when  directed 396 

Disciplinary  Barracks,  when  directed 397 

In  post,  when  directed 398 

Confirmation  of  sentences: 

When  required 378 

Conspirators : 

See  Evidence,  testimonial.  ^— 

Contempts : 

Authority  to  punish . 173 

Who  may  be  punished 173 

Direct  and  constructive 173 

Procedure .      173 

Continuance : 

When  granted 139-141 

Convictions.    (See  Previous  convictions.) 

Coroner : 

Summary,  court-martial  as 483 

Counsel : 

Appointment  and  duties 108-111 

Countersign.    (See  Parole.) 

Courts-martial.     (See  General,  Special,  and  Summary  court-martial.) 

Classification 5 

Composition 6^ 

Number  of  members 7 

By  whom  appointed 14,21,25 

Not  part  of  Federal  judicial  system 33 

Determination  of,  for  trial . 78 

Organization 81-142 

Control  over  accused 87 

Power  to  punish  contempts : —      173 


414  INDEX. 

[References  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "  p  "  pre- 
ceding the  number.] 

Courts-martial — Continued.  Par. 

Expenses  of,  how  payable 193 

Records  of 354-368 

Action  on  proceedings 369-400 

Courts  of  inquiry: 

Constitution,   jurisdiction,    etc 447-475 

Cowardice : 

Denounced 425 

Accessory  penalty 347 

Credibility : 

Of   witness 256-262 

Deatli  penalty: 

When  mandatory , 40 

When  and  how  imposed 346 

Dental  surgeons: 

Not  available  for  court-martial  duty 6 

Depositions : 

When  admissible : . 174 

Before  whom  taken 175 

Procedure  to  obtain 177, 182 

As   evidence 263-268 

Form  for pp.  379-382 

Deserter : 

Arrest  by  civil  authority 58 

Minority  of,  effect  on  jurisdiction 60 

Desertion : 

Evidence   of 284 

War  Department  policy  regarding 340-343 

Defined  and  discussed 409-410 

Detachment : 

Defined 28 

Discharge.    (See  Dishonorable  discharge.) 

Jurisdiction  after  fraudulent 38 

Effect  of  honorable 38 

Effect  of  dishonorable 38 

Disciplinary  Barracks: 

Confinement  in 397 

Dishonorable  discharge: 

When   authorized 349 

May  be  suspended ^ 321,  393 

Remission  of  suspended  sentence  of 403 

Dismissal  of  officer: 

When  mandatory 40 

Disorders : 

Interference  when  attempting  to  suppress 419 

Disrespect : 

Toward  President 413 

Toward  superior  officer »- 414 

Documents: 

See  Evidence. 

Draft.    (See  Persons  drafted  into  the  service.) 


INDEX.  415 

[References  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "  p  "  pre- 
ceding the  number.] 

Drunkenness:  Par. 

As  excuse  for  crime 285-286 

On  duty 435,  436 

Dwelling : 

Offenses  concerning 441 

Dying  declarations: 

See  Evidence,  testimonial. 

Effects  of  deceased  persons: 

Disposition  of 482 

Embezzlement : 

Defined  and  denounced 443 

Enemy : 

Relieving,  harboring,  holding  correspondence  with,  giving  intelligence 

to 431 

Enlisted  Reserve  Corps: 

When  subject  to  military  law 4 

Enlistment.     (/See  Fraudulent  enlistment.) 

Unlawful,  defined  and  discussed 406 

Equivalents : 

Table  of,  for  substituted  punishments 349 

Evidence : 

General  subject : 194-289 

Circumstantial 203-206 

Testimonial 207-237 

Documents 238-245 

Depositions 263-275 

Pre^umption&i 276-288 

Judicial  notice 289 

Rules  of,  followed  by  courts-martial _„ 198-199 

Executive  order: 

Prescribing  maximum  limits  of  punishments 349 

Experts : 

Employment  and  pay  of 192,  218 

False  alarms: 

Occasioning 425 

Field  clerks: 

Army,  subject  to  military  law 4 

Quartermaster  Corps,  subject  to  military  law 4 

Findings : 

Discussed 294-305 

General  principles 297 

Lesser  included  offense 298 

Exceptions  and  substitutions 299 

On  joint  charges : 301 

Record  of,  by  reporter 305 

Frauds  against  the  Government: 

Defined   and   denounced 444 

Accessory  penalty 347 

Fraudulent  enlistment: 

Defined  and  discussed 70, 405 


416  INDEX. 

lEeferences  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "  p  "  pre- 
ceding the  number.] 

General  court-martial:  Par. 

Number  of  members 7 

By   whom    appointed 14 

Jurisdiction 1 39 

Limit  of  punishment 40 

Record  of  trial 354-357 

Form  for  record pp.  357-364 

Form  for  order  publishing  proceedings p.  375 

General  prisoner: 

Defined 74 

Sentences  concerning 330 

Habeas  corpus: 

Purpose   of   writ 476 

In  connection  with  warrant  of  attachment 169,478 

When  issued  by  State  court 477,478 

When  issued  by  United  States  court 479 

Writ  issued  in  the  Philippine  Islands 480 

Form  for  returns pp.  389-392 

Briefs  for  use  in  certain  cases L pp.  393-396 

Handwriting.     (/S'ee  Evidence.) 

Hearsay : 

See  Evidence,  testimonial. 

Hospitals : 

Inmates,  Fort  Bayard  and  Hot  Springs,  subject  to  military  law 4 

Husband  and  wife: 

See  Evidence,  testimonial. 

Ignorance:  •  - 

Of  law  and  fact 282,283 

Incrimination.     (See  Self-crimination.) 

Inferior  courts.     (See  Special  and  Summary  courts-martial.) 

Inquests : 

Summary  court-martial  to  hold 483 

Report  of p.  409 

Interpreter : 

Employment  and  pay 119 

Interrogatories.     (See  Deposition.) 

Insanity : 

Accused : 219 

Irons : 

Accused  not  to  be  tried  in 88 

Jeopardy.      (-S'ee  Trial.) 

Joint  charges.     (See  Charges.) 

Judge  advocate: 

Power  to  appoint 15 

Selection  and  duties 94-105 

Duty  toward  accused 96 

Legal  adviser  of  court 99 

Assistant 106,107 

Suggestions  for  trial pp.  353-356 


INDEX. 


417 


[References  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "  p  "  pre- 
ceding the  number.] 

Jurisdiction  of  courts-martial:  Par. 

Defined , 32 

Conditions  necessary  to  show 34 

When  concurrent  with  civil 35 

Can  not  be  divested  by  act  of  accused 36 

Not  territorial 37 

When  terminated 38 

General  courts-martial . 39,  40 

Special  courts-martial 41,  42 

Summary    courts-martial ^ _ 43,  44 

Other  military  tribunals ' 45 

Larceny : 

Defined  and  denounced 443 

Leading  questions.     (See  Evidence.) 

Limitation  on  actions: 

As  to  time 149 

As  to  number 149 

Manslaughter : 

Defined  and  denounced 443 

Marines : 

Subject  to  military  law . 4 

When  triable  by  military  court 4 

When  triable  by  naval  court 4 

When  available  for  court-martial  duty 10 

Martial  law: 

Defined 2 

Maximum  limits  of  punishments.    (See  Punishments.) 

Mayhem: 

•    Defined   and   denounced :  443 

Member  of  court-martial: 

Duties 81 

Absence,  how  accounted  for 85 

Decorum 86 

Voting - 90 

Change  in ^ .' 93 

Quorum 7 

As   accuser 129 

As  witness 131 

Military  Academy: 

See  Superintendent;  Cadet. 

Military  Government: 

Defined 2 

Military  jurisdiction: 

Source 1 

Kinds ^— 11 2 

Exercise  of ^ . 3 

Military  law: 

Defined 1 2 

Militia.    (See  National  Guard.) 

91487°— 17 28 


418  INDEX. 

[Eeferejices  are  to  paragraphs  except  where  pages  are  indicated  bv  th?  letter  "  p  "  pre* 

ceding  the  number.] 

Hisbehavior :     *  Par. 

Various  kinds  in  time  of  war  prohibited 425 

KCotions : 

To  sever 156 

To  elect 157 

Nolle   prosequi 158 

Murder : 

Defined  and  denounced 442 

Huster,  false: 

Defined  and  discussed 407 

Mutiny : 

Defined  and  discussed  -, 417,  418 

National  Guard: 

When  subject  to  military  law : 4 

When  available  for  court-martial  duty 9 

May  be  tried  by  Regulars 11 

System  of  court-martial  for p.  331 

Navy: 

Not  subject  to  military  law 4 

Medical  department  serving  with  marines 4 

Nolle  prosequi 158 

lloncomniissioned  ofa.cer: 

Reduction  of 42, 44, 327,  349 

May  object  to  trial  by  summary  court 43 

Oaths: 

Of  members 132 

Of  judge  advocate 133 

Of  witness 134 

Of  reporter 135 

Of  interpreter 136 

To  test  competency 137 

For  administration  purposes-^ 138 

Officers'  Reserve  Corps: 

When  subject  to  military  law 4 

When  available  for  court-martial  duty 9 

Orders : 

Promulgating   proceedings 400 

Forms  for 1 pp.  375-377 

Pardon : 

As  plea  in  bar_I '. 150 

Evidence  of ^^ 273 

Parole : 

Offenses  concerning : 427 

Penitentiary : 

Confinement  in,  when  authorized ,__ 337-339 

Perjury : 

Defined  and  denounced . 443 

Persons  accompanying  Army  in  field: 

Subject  to  military  law 4 

Persons  drafted  into  the  service: 

When  subject  to  military  law —  4 

When  available  for  court-martial  duty 9 


INDEX.  419 

f  References  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "  p  "  pre- 
ceding the  number.] 

Persons  serving  witli  Army  in  field:  Par. 

Subject  to  military  law 4 

Persons  subject  to  military  law: 

Classes  enumerated 4 

Pleas : 

Kinds 145 

Jurisdiction 146 

In  abatement 147 

In  bar 14S-151 

Inadmissible ^ 152 

General  issue ^ 154 

Action  upon  special 153 

Refusal  to  plead 155 

Post  exchange: 

Debts  due  can  not  be  collected  by  court-martial^ 325 

Postponement.    (See  Continuance.) 

President  of  tlie  United  States: 

As  appointing  authority ^ 15 

President  of  court-martial: 

Duties 89, 154, 357 

Presumptions: 

Of  law  and  fact 276-278 

Previous  convictions: 

Defined ^ 349 

Procedure  in  introducing . 306 

Disposition  of  evidence  of 306 

Cliaracter  of -      307 

Prisoner,  military.    (8ee  General  prisoner.)    . 

Subject  to  military  law 4 

Use  of  irons 56 

Refusal  to  receive  or  keep 55, 421 

Releasing  without  authority 57, 423 

General 74 

Suffering  to  escape 423 

Refusing  to  turn  over  to  civil  authorities 424 

Privileged  communications : 
See  Evidence,  testimoniaL 

Property,  military: 

Offenses  concerning 433,  434 

Property,  private: 

Offenses  concerning 439 

Redress  for  injuring ^ 481 

Prosecutor.    (See  Accuser.) 

Punishment.    (See  Sentence.) 

Mandatory  and  discretionary 40 

War  Department,  policy  regarding < 340-343 

Prohibited 344,345 

Maximum  limits 349 

Mitigation  of 380 

Commutation 384 

Quarrels.    {See  Disorders.) 


420  '  INDEX. 

[References  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "  p  "  pre- 
ceding the  number.] 

Quartermaster  Corps:  Par. 

Second  lieutenants,  not  available  for  court-martial  duty 6 

Quorum. : 

For  general  or  special  court-martial 7 

Bank: 

Officer  suspended  from,  not  available  for  court-martial  duty 9 

Of  members  of  courts-martial 12 

Trial  by  inferiors  in 12 

Among  Regulars,  Volunteers,  and  others 12 

Of  appointing  authority 19 

Change  of ^ 74 

Immaterial  in  applying  rules  of  evidence 200 

Suspension  from 314 

Rape: 

Defined   and   denounced 442 

Reasonable  doubt: 

Defined 288 

Records  of  trial: 

General  court-martial ■ 354-357 

Special   court-martial 358-362 

Summary   court-martial 363 

Correction  of 364,  365 

Disposition   of 366,  367 

Loss  of 368 

Carbon  copy  for  accused 117 

Reduction : 

Of  noncommissioned  officer 327,  349 

Refusal  to  plead.    {See  Accused.) 

Regular  Army: 

Composition 4 

Officers  may  try  members  of  other  forces 11 

Reporter : 

Employment  and  compensation 112-118 

Res  Gestae: 

See  Evidence,  testimonial. 

Retainers  to  the  camp: 

Subject  to  military  law 4 

Retired  officers: 

Subject  to  military  law 4 

When  available  for  court-martial  dutj[ 9 

Witness    fees 183 

Returns,  false. 

Defined   and   discussed : 408 

Reviewing  authority.    {See  Appointing  authority.) 

Forms  for  action  by,  on  sentence p.  371 

Revision : 

Proceedings   on . 352 

Form  for p.  363 

Reward  for  apprehending  deserter: 

When  payable 329 

Robbery : 

Defined   and   denounced 443 


INDEX.  421 

[References  are  to  paragraphs  except  where  pages  are  Indicated  by  the  letter  "  p  "  pre- 
ceding the  number.] 

Safeguard :  Par. 

Forcing , 428 

Self  crimination : 

Compulsory,  prohibited 233-236 

Sentence.    (See  Punishment.) 

Voting  on 308 

For  officers 310 

For  soldiers 311 

Various  kinds,  discussed__J 312-328 

Forms  for p.  369 

Not  effective  until  approved 371 

Mitigation   and   commutation 380-384 

In  excess  of  legal  limit ^_      386 

Date  of  beginning  of 401 

Suspension    of 391-393 

Sentinel : 

Offenses  committed  by 436 

Soldiers*  Homes: 

Inmates  subject  to  military  law 4 

Special  court-martial: 

Number  of  members 7 

By  whom  appointed 21 

Commanding  officer  as  member. . 24 

Jurisdiction 41 

Limit  of  punishment 42 

Procedure . 350 

Record  of  trial 1— 358-362 

Form  for  record ^^ pp.  365, 366 

Form  for  order  publishing  proceedings p.  374 

Speeches : 

Using  provoking 440 

Sj>y: 

Offense  of,  defined 432 

Standing  mute.    (See  Accused.) 

Statement : 

Inconsistent    with    plea 154 

Scope  of  closing 290 

Statement  of  service.    (See  Charge  sheet.) 

Use   of ^ 271 

Statute  of  limitations: 

See  Limitation  on  actions. 

Stoppage  of  pay: 

Not  function  of  court-martial 325 

Subpoena : 

Service   of 100 

Duces  tecum 166 

Fees  for  serving 191 

Form  for  civilian  witness .* p.  383 

Substitution  of  punishment.    (See  Equivalents.) 


422  INDEX. 

[References  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "p"  pre- 
ceding the  number.] 

Summary  court-martial:  Par, 

Consist  of  one  officer 7 

By  whom  appointed 25 

When  one  officer  present : - 27 

Jurisdiction 43 

Limit  of  punishment 44 

Procedure 351 

Record  of  trial 363 

Form  for  record 1 j p.  367 

Superintendent,  Military  Academy: 

May  appoint  general  court-martial '. . 16 

Surrender : 

Abandoning  or  delivering  up  command 425 

Subordinates  compelling 426 

Suspended  sentence: 

Recommendation  in  case  of  dishonorable  discharge ^ 321 

May  be  remitted . 403 

To  await  pleasure  of  President 391 

When  authorized . 392 

Dishonorable  discharge 393 

Trial: 

When  second  trial  authorized 149 

For  officer  summarily  dismissed 38 

Tribunals,  military: 

Kinds 3 

Uniform : 

Kind  worn  by  members  of  court 82 

Veterinarians : 

Not  available  for  court-martial  duty 6 

Victuals : 

Offenses    concerning 437,  438 

Voir  dire.    (/Sfee  Oath  to  test  competency.) 

Volunteers : 

Subject  to  military  law 4 

When  available  for  court-martial  duty __ 9 

May  be  tried  by  Regulars : : 11 

Vote: 

General  or  special  court-martial ' 90 

Refusal    to 90 

Tie 90 

On    finding 294 

Majority  only  required 295 

Exception  in  case  of  death  penalty 295 

On    sentence '. 308 

Vouchers,  forms  for; 

Civilian  witness p.  397 

Reimbursement  Government  employee p.  401 

Reporter I p.  405 

Warrant  of  attachment: 

When    issued 168 

Form  for p.  387 


INDEX.  423 

[References  are  to  paragraphs  except  where  pages  are  indicated  by  the  letter  "  p  "  pre- 
ceding the  number.] 

Witnesses.    {8ee  Evidence.)  '  Par. 

Process  to  obtain 159 

Subpoenas . 160 

Military 163 

Civilian 164 

In   confinement 167 

Refusal  to  appear  or  testify 170 

Fees,  mileage,  and  expenses  of 183-193 

Experts 192,218 

Examination  of 246-255 

Credibility 256-262 

Competency 209 

Witness  for  prosecution: 

Member  of  court  as 129, 131 


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